Research On The Right Of Rescinding The Contract

After the "Xinyu company v.Feng Yumei case" was published,the right of the defaulting party to terminate the contract has aroused widespread controversy in theory and practice.The academic circles are divided into positive and negative groups around this issue.The scholars who support one side mainly have three views: efficiency is an important value of contract law;the judicial practice of the party in breach of contract has a significant effect;and the new understanding of moral judgment.The negative scholars think that giving the party in breach the right to rescind the contract is not conducive to the implementation of the principle of strictly abiding by the contract;it is not in line with the morality of the law;and it is lack of the necessity of legislation.By combing the relevant cases of the right to rescind the contract of the breaching party in the whole country from 2018 to 2020 and the judicial practice’s views on this issue,the necessity and legitimacy of the right to rescind the contract of the breaching party exist.The right to rescind the contract of the breaching party can fill the loopholes in the original law,break the deadlock of the contract,adjust the imbalance of interests,promote cooperation in good faith,and limit the abuse of rights.This study analyzes the communique case "Xinyu company case" and the national cases of contract termination of the defaulting party in 2018-2020.It shows that although the second paragraph of article 580 of the civil code introduces the relevant content of contract termination of the defaulting party,it is attached to the first paragraph in the scope of application,which makes the scope too narrow and can not effectively solve the actual situation;in addition,for the article "can not achieve the purpose of the contract" ”There are also controversies.Some people think that it can not be used as a reason for the rescission of breach of contract,nor can it provide a clear standard for the exercise of the rescission right,and it may be difficult to achieve the expected legal effect in the specific application.Based on the experience of France’s judicial rescission system,Germany’s grace period,this paper holds that the litigation mode is the most appropriate way to deal with the rescission of the contract.There are three reasons: first,it causes less disputes;second,it can prevent the explosion of litigation and highlight efficiency;third,the judgment is more fair and reasonable,which can easily convince the parties.The system design of the contract rescission of the breaching party involves the applicable conditions,types,procedural requirements and legal consequences.First of all,the judicial rescission needs to meet the situation of contract deadlock,difficulties in the continued performance of the contract,fault of the breaching party,obvious unfairness in the continued performance,non exercise of the rescission right of the observant party,etc.;second,the type of contract should be that the object of the contract is the kind of thing;third,the pre litigation notice procedure should be performed;finally,the judicial organ should judge and determine the legal consequences,such as the rescission time and damages To deal with.