The Study On The Application Of The Breaching Party To Cancel The Contract

In recent years,theoretical and practical circles have paid much attention to the issue of "breach of contract application for rescission of contract",believing that the contract impasse should be broken,but there is an urgent need to reach a consensus on the criteria for determining the contract impasse and whether the breaching party should enjoy the right to rescind the contract.The boundaries of a contract impasse must be clarified and not be confused with a general contract impasse.The criteria for determining contract impasse are diverse,and a distinction should be made between permanent and non-permanent contracts in determining them according to their respective criteria.The defaulting party’s right to rescind can solve the problem of impasse in contracts that cannot be effectively solved by other systems,and does not violate the principle of strict compliance with the contract,which is in line with the goal of encouraging transactions in the Civil Code（Contracts）,and is superior in practice and reasonable and feasible in theory.Article 580 of the Civil Code can be used as the legal basis for the defaulting party’s right to rescind.The expression "application for termination of contractual rights and obligations" is not an addition to the so-called "right of termination",but should be more appropriately understood as " release from contract".The expression "party" in paragraph 2 actually refers to the "party in breach".The right created by this article is the right to release the defaulting party rather than the right to judicial release;it is the right to form the formation of the right to sue rather than the right to request and apply.The subject of the right to release the defaulting party should be the parties rather than the judicial authorities.The defaulting party’s right of release as a new type of release designed to take the path of formation of the right of action is a further improvement of China’s contract release system,so that the statutory right of release is further divided into "ordinary statutory right of release" with the nature of ordinary formation rights and "special statutory right of release" with the nature of formation of the right of action.The "special statutory right of discharge" has the nature of formation right.However,Article580 of the Civil Code does not cover all types of contract impasse,and has limitations,and needs to be appropriately extended to pecuniary debts that meet certain conditions by the interpretation theory.