| In the judicial practice,"Xinyu Case" for the first time makes a judgment that allows the breaching party to rescind the contract,which overturns the traditional view that the right to rescind the contract is only enjoyed by the abiding party.Since then,the issue of the defaulting party’s right to rescind has attracted the attention of more and more scholars.But how to legislate the right of rescission of the breaching party is still controversial,and there is no uniform conclusion,so this issue is still of high research value.In order to discuss whether the breaching party has the right to rescind the contract under specific conditions and under what circumstances,the text examines the internal mechanism of granting the right to rescind the contract to the breaching party under specific conditions on the basis of sorting out the existing legislative situation,judicial basis,theoretical basis and legal basis of judicial practice.The paper is divided into five parts as follows.In the first part,the problem is formulated.Firstly,for the sake of research rigor,the research scope of the thesis is limited.After clarifying the background of the topic and the value of the research,the current situation of the domestic and foreign research on the issue of the defaulting party’s right to rescind the contract is sorted out.Domestic scholars on this issue mainly focus on whether the defaulting party enjoys the right to rescind the contract,specifically,also includes the way the defaulting party exercises the right to rescind and the legal consequences of the discussion,scholars on the issue of the argument that there are different paths of interpretation.In addition,the research ideas and methods are introduced,mainly including literature research,empirical research,legal norms analysis.Finally,the paper points out the innovation and insufficiency.In the second part,analyzed the legislative and judicial practice situation of the breaching part.In terms of legislation,before the formal promulgation of the Civil Code,there were specific provisions on contract rescission in China’s Contract Law and some special laws and judicial interpretations,but there were no clear provisions on contract rescission by the defaulting party.Since then,the Jiumin Summary,which is affected by the contract compilation process,explicitly recognizes the right of the breaching party to rescind the contract for the first time.Under strict conditions,the affirmative view that the breaching party is entitled to rescind the contract is recognized.After the formal promulgation of the Civil Code,Article 580 is considered by some scholars to give the breaching party the right to rescind the contract.In the aspect of judicial practice,through the method of empirical research,213 cases are statistically summarized to study the basis and results of judicial adjudication,and the view that the breaching party has the right to rescind the contract in judicial practice has high support rate.The reasons for adjudication can be summarized as the failure to achieve the purpose of the contract,balancing the interests of the parties,high performance costs and avoiding the waste of social resources.The third part is the theoretical controversy and proof of the breaching party’s right of rescission.There are two main theories on the right of the breaching party to rescind,namely,the "complete negation" and the "limited affirmation".The theory of "complete negation" can not be established on the basis of immorality,inefficiency and violation of the basic principles of contract law.The arguments for the justification of the defaulting party’s right to rescind mainly include theoretical justification and the justification of the current legal interpretation.In terms of theoretical basis,the arguments are based on the method of legal doctrine from several aspects,such as the conformity of the defaulting party’s right to rescind the contract with the basic principles of the civil code,the conformity with the value of efficiency,the aim and function of the system of rescission of contract and the theory of choice of remedy for breach of contract.From the perspective of the interpretation of the existing law,based on Article 563 of the Civil Code,Article 580 of the Civil Code and Article 48 of the Jiumin Summary,this paper analyzes and proves the view that the breaching party has the right to rescind the contract.The fourth part explores the conditions applicable to the defaulting party’s contractual release and damages upon exercise of the right.The conditions for the breaching party to exercise its right to rescind include both substantive and procedural aspects.The substantive conditions are that the purpose of the contract cannot be achieved,there is no bad faith breach of contract by the breaching party,it is unfair for the breaching party to continue to perform the contract,and the defaulting party refuses to perform the contract in violation of the principle of good faith.The procedural condition is that the exercise of the defaulting party’s right to rescind must be in the form of an adjudicative rescission.After the exercise of the right,the breaching party will incur liability for damages,which are to be based on the principle of full indemnity,within the scope of actual losses and available benefits,but subject to the rule of foreseeability and the adoption of concrete calculation methods and abstract calculation methods to calculate the amount of damages. |
