Research On The Second Paragraph Of Article 580 Of The Civil Code

Since the "Feng Yumei v.Xinyu Case",there has been a lot of controversy in the academic circles about the defaulting party’s termination system,and there are "negative" and "limited affirmative" theories about whether the defaulting party has the right to claim the rescission of the contract.The core of this controversial issue lies in the contradiction that there is an urgent need to find a remedy for the defaulting party to get out of the contract,because the observant party refuses to exercise the legal relief right,while the traditional contract law theories such as the principle of strict adherence to the contract is an insurmountable conflict with the rules of the defaulting party’s rescission.However,this conflict is not irreconcilable,witch is because the rules of defaulting party rescission of contract proposed by proponents all imposed strict restrictions on the breach of contract,and satisfying certain constitutive elements will probably exclude the abuse of rights by the defaulting party,and also will not give rise to opportunistic behavior or violate basic ethical values.As for the opponents’ proposal to solve the problem of contract deadlock by other systems or alternative paths,there are various problems and it is not the most effective and reasonable solution to this problem.The Civil Code adds new Article 580,paragraph 2,which gives the defaulting party the right to initiate the rescission of the contract,and conveys a signal that the rule of rescission of the contract by the defaulting party has its legality and legitimacy.The introduction of this rule provides a basis for solving most of the contract deadlock in judicial practice,and makes up for the legal loophole that there is no connection between the two systems of impossibility of performance and termination of the contract.In terms of expression,in view of the adoption of the expression "rescission right" during the formulation process caused a relatively strong reaction in academic community,finally the Article 580,paragraph 2,on the defaulting party’s contract rescission rule,using the word "termination" in the formulation.Although the expression is "termination",in our current legal system there is no distinguish between the concept of contract rescission and contract termination.Their latent meaning and legal effects should not be different,so the right in this paragraph is more appropriate to be called "the right to apply for contract rescission".In terms of its nature,this paragraph should be the right of the parties themselves rather than the right to judicial release power,specifically,it should be the right of action of formation----the right holder exercise the right by the way of litigation.The expression of Article 580,paragraph 2 of the Civil Code is very concise,which stipulates that the contract parties have the right to apply to the court for rescinding the contract under the circumstances specified in the first paragraph.However,there are no specific provisions on the specific subject exercising the right,the applicable conditions,the elements that should be met for the rescission of the contract,which requires a normative interpretation of this paragraph.In practice,the legal application of this paragraph specifically includes applicable premises,constitutive requirements and legal consequences.According to the expression "Except for the preceding situation in the provisions",the three continued performance of the first paragraph are also the premises of this application,which is in fact one of the limited conditions set by the rules of the defaulting party applying for rescission of the contract.The applicable requirements of the rules can be divided into substantive elements and procedural elements,and the latter include subject elements,objective elements and subjective elements.The "party" in this paragraph should be interpreted restrictively to the default party,which means the subject element is the defaulting party（debtor）.It is more reasonable for the subject of the right to be limited to the defaulting party,no matter from the perspective of system interpretation or normative function.The objective element is that the purpose of the contract is impossible to realize,theoretically,the specific connotation of "the purpose of the contract can not be realized" has not yet formed unified perspective,but there should be a clear boundary in the application of the law stipulated in this paragraph,so as to provide a more accurate basis for the judge to judge whether the purpose of the contract can not be realized.The connotation is limited to the "debtor’s contractual purpose",and at the same time,the subjective purpose is considered on the basis of judging the objective purpose,which is more in line with the value orientation in this provision and produces more efficient application results.The subjective element is that the observant partys refusal to rescind the contract violates the honest and trustworthy principle."Non-malicious breach" is difficult to judge in practice,"obvious unjust" severely narrows the application scope of this paragraph,regardless of the judgment of subjective malice or the objective results of justice,the judgement basis of "violation of the honest and trustworthy principle" as the subjective element is more accurate.In addition,because the rescission of the contract by the defaulting party is already an exception rule under the regular basis,it is positively significant to take the prosecution or arbitration brought by the defaulting party as the pre-procedure for exercising the right.The legal consequences of this paragraph are the contract rescission and the defaulting party liability for breach of contract,and the time of the rescission of contract shall be determined when both conditions are met: "the conditions for rescission have been fulfilled" and "the intention to terminate the contract has arrived".Although Article 580 paragraph 2 is introduced into the Civil Code,the problem of contract deadlock can be solved to a large extent,there are still some limitations.First,the contract deadlock of non-monetary debt can not be regulated by this paragraph;second,if the defaulting party do not claim liability for breach of contract,it is difficult for the court to directly decide that the defaulting party bears liability for breach of contract;third,this paragraph is placed in the section on liability for breach of contract,which cause a contradiction between the value and the system.For the problem of contract deadlock of monetary debt,it is untenable to try to solve it through interpretation theory,and a specific applicable resolution path should be provided for such problem through judicial interpretation.