| As a momentous part of the compact subsection of the Civil Code,contract rescission is one of the reasons for the elimination of the rights and incumbencies of contracting parties,and it is also an momentous way to remedy contract breach.Most of the non-breaching parties seek relief by rescinding the contract,However,there are also cases in which the defaulting party asks for rescinding the contract.For example,the Gazette case of Xinyu Company v.Feng Yumei（2006）.This case is the first time in the judicial system of our country supports that the breaching party can have the option of terminating the contract in the form of judgment,which has caused a continuous discussion on whether the breaching party can terminate the contract For the sake of solving the realistic problem of contract deadlock and dealing with the disputes between the parties,The minutes of the National Civil and commercial Trials and the Civil Code have made new provisions on this because the termination of the contract of the breaching party is different from the traditional termination of the contract,and there has been a great debate,For the consideration of moral hazard and legislative stability,the defaulting party’s right to terminate the contract was not explicitly granted by the legislators in the Civil Code.Instead,In the case of excluding the request for continued performance of liability for breach of contract,a new clause is added under Article 580 of the contract series,which gives the parties the right to request termination of the contract and provides applicable space for the breaching party to request termination of the contract.Although the breaching party’s request to rescind the contract provides a feasible way to break the contract deadlock,it has strong theoretical and practical significance.However,due to the conservative nature of the legislation and the particularity of the breaching party’s request for termination of the contract,there are still some theoretical disputes and practical problems in reality.Firstly,there is a theoretical view that the clause itself has defects and destroys the contract law system.At the same time,there are different views on the nature of the request of the breaching party to terminate the contract.Secondly,there are also some problems in judicial practice:the scope of application is narrow;the lack of pre-procedures;the application conditions are not specific;the legal consequences are not clear.In the current context of my country’s economy being devastated by the corona-virus,the number of contract deadlock cases will increase even more,and it is imperative to improve the rules for the breaching party’s request to terminate the contract.Combined with the deficiencies in judicial practice,The main recommendations to improve the application of the rule of requesting termination by a defaulting party are as follows:It clarifies the litigation rights of the breaching party in the rules and the understanding of the unification of theory and practice;In the case of monetary debt,the rule is applied to expand and progressively has an increasing coverage of the scope of application;Analogously apply the renegotiation procedure in the change of circumstances to form a reasonable procedure and save judicial resources;Refine the applicable conditions,including the judgment of subjective elements and the identification of obvious unfairness;Clarify the legal consequences,including the specific assumption of liability for breach of contract after the termination of the contract,and determine the termination time of the contract "when the litigation documents are served". |
