Research On The Dissolution Of The Contract By The Breaching Party

Since the Supreme People’s Court gazette case "Xinyu Company v.Feng Yumei Store Sales Contract Dispute"(hereinafter referred to as the "Xinyu Company Case"),the society has launched a new discussion,that is,whether the breaching party can enjoy the right to terminate the contract.The principle of strict observance of contracts is an important principle of contract law.If it is recognized that the breaching party has the right to terminate the contract,it will inevitably have a huge impact on the contract system.However,with the development of the market economy and various situations in practice,the breaching party lacks appropriate remedies when there is a "contract deadlock".Since the "Contract Law" has no clear provisions on this,there are many cases where similar incidents are judged simultaneously in different judicial trials,and the trial standards must be unified,and the theoretical circles have been arguing about this.Based on this,this paper,on the basis of sorting out the relevant cases of the breaching party’s contract termination,combined with the "Contract Law","Minutes of the Nine Peoples","Civil Code" and other relevant provisions,explains how the breaching party terminates the contract.In order to achieve the resolution of the "contract deadlock".The main body of the paper includes the following four parts:The first part summarizes the issue of the breaching party’s contract termination and explores the essence of the "Breaching Party’s right to terminate the contract".Thinking from the Supreme People’s Court gazette case "Xinyu Company",when the cost of continuing to perform the contract is too high and exceeds the benefits of both parties,it is a more reasonable act to replace the continued performance of the contract with damages,and breach of contract should be allowed at this time.Party terminates the contract.Based on the analysis of the relevant cases of the breaching party’s termination of the contract in practice,through two common cases of housing lease contract disputes,the court judgments are different.In judicial practice,there are different judgments on the breaching party’s termination of the case.In response to the ambiguity of the legal profession on the issue of whether the breaching party enjoys the right to terminate the contract,it has led to discussion on this issue.Through the analysis of both practical and theoretical perspectives,and through the perspectives of different scholars,this article believes that the breaching party does not enjoy the legal contract The right to rescind,the essence of the "right to rescind the contract of the breaching party" is to form a right of action.The second part discusses the dissolution of the breaching party’s contract from the "Contract Law".Through sorting out the relevant cases of the breaching party’s termination of the contract,the most cited legal provisions in the relevant cases are Articles 94 and 110 of the Contract Law,most of which are used as the legal basis to support the breaching party’s termination of the contract,and citing the efficiency breach of contract theory and fairness Reasoning in principle.This article explains them separately.Although the "party" in Article 94 of the "Contract Law" is unclear,it does not grant the right to terminate the breach of contract.The provisions of Article 110 of the "Contract Law" regarding the high cost of performance or the impossibility of performance are mainly to give the obligor the right to defend against continued performance,rather than to give any party the right to terminate the contract,including the observant party.Similarly,neither the theory of efficiency breach of contract nor the principle of fairness is the source of the right of the breaching party to have the right to terminate the contract.The third part explains the issue of the termination of the contract of the breaching party under the "Civil Code",from Article 48 of the "Minutes of the Nine Peoples",the first and second review drafts of the "Civil Code Contract Edition" to Article 580 of the "Civil Code" In paragraph 2,it is finally stipulated that the breaching party has the right to request the termination of the contract from the people’s court or arbitration institution,and stipulates the exercise of its rights,which is a major breakthrough in the system.Despite the controversy,it is believed that its system does not conform to the setting of the dissolution right system and its application will also encounter difficulties.However,the establishment of this clause is a loophole supplement to Article 110 of the "Contract Law" and an important path choice for the "contract deadlock" in the era of the Civil Code.The fourth part discusses the legal consequences of the breaching party’s application for contract cancellation.The determination of the time when the contract is terminated has a significant impact on the calculation of damages.There will be "the date when the judgment becomes effective","the date when a copy of the complaint is served",and "when one’s own actions are not performed" to determine the time when the contract is terminated.The author believes that,unlike the statutory right of termination,combined with the positioning of Article 580,paragraph 2 of the Civil Code,it is most appropriate for the breaching party to apply for the termination of the contract on the "date when the judgment becomes effective",which is relatively fair to the observant party.When the court receives an application from the breaching party to terminate the contract,it shall also deal with the issue of damages in order to reduce the burden of litigation and substantially resolve disputes.In the calculation of damages,it is necessary to provide comprehensive compensation to protect the interests of the observant party,and to implement the rules of timely derogation.