Study On The Application Of The Norms Of The Right To Rescind The Contract Of The Defaulting Party

Under the background of the compilation of the civil code,legislators formally incorporated the right of the breaching party to terminate the contract into the code system.In 2006,the Supreme Court published the case of Xinyu company in the court Gazette,which has triggered a discussion on whether the defaulting party can terminate the contract.In this case,the breaching party defended the non breaching party’s request for performance of the contract with Article 110 of the original contract law,but the non breaching party insisted on performance of the contract.At this time,the contract fell into a situation of neither performance nor termination,and both parties to the contract were deadlocked.Finally,the court supported the breaching party’s application and ruled to terminate the contract.Since the case,there have been more and more cases about the breaching party’s request to terminate the contract in practice.Whether to allow the breaching party to terminate the contract is of great significance to the maintenance of the effectiveness of the contract.Chinese traditional legal theory generally believes that only the observant party can terminate the contract.There has been a heated discussion on whether the defaulting party can terminate the contract.The affirmer believes that the right to terminate the contract of the defaulting party originates from the actual needs of the society;The negatives believe that this system will destroy the legislative foundation of our country.Scholars’ discussion on this issue eventually led to the birth of paragraph 2 of article 580 of the civil code,but even so,scholars have not reached a consensus on how to apply this paragraph and whether it can completely solve the contract deadlock in practice,which will be detrimental to the judge’s understanding and application of the provisions.In view of this,through the statistical analysis of the judgment cases on the termination of the contract by the defaulting party from 2015 to2021,this paper defines the causes and types of contract deadlock,so as to reflect on whether paragraph 2 of article 580 of the civil code can properly solve the problem of contract deadlock,and how to correctly deal with the problem of the right to terminate the contract by the defaulting party under the existing rule system of the civil code.The logical framework and main contents of this paper are as follows:The first part mainly expounds the practical evaluation and legislative response of the breaching party’s right to terminate the contract.Through the analysis of two typical cases of the right to terminate the contract of the defaulting party,and combined with the statistical results of relevant cases of the contract termination of the defaulting party during the period from 2015 to 2020,this part summarizes that the phenomenon that the defaulting party requests to terminate the contract in practice mainly exists in two different kinds of contract deadlock.Then it combs the legislative evolution of the breaching party’s right to terminate the contract in the civil code,and points out the practical significance of paragraph 2 of article 580.The second part mainly focuses on the application dilemma of paragraph 2of article 580 of the civil code.By combing the judgment cases and combining the legislative provisions of paragraph 2 of article 580,this paper analyzes the possible problems in the application of paragraph 2 of article 580 of the civil code.The third part mainly analyzes the factors that the court needs to weigh when judging whether it can support the defaulting party to terminate the contract.Through the above-mentioned judgment from 2015 to 2020,it is concluded that the court should fully consider the balance of the interests of the parties,whether the purpose of the contract can be realized,whether there is a violation of good faith,whether there is a waste of social wealth and whether the trust relationship between the two parties is broken when judging whether the contract can be terminated.The fourth part is about the specific application of the contract rescission rules of the defaulting party.The above analysis shows that paragraph 2 of article 580 of the civil code can not completely solve the problem of contract deadlock in practice.At the same time,due to the abstraction of legislative provisions,there are different understandings of paragraph 2 of article 580 of the civil code.Therefore,this part mainly analyzes the application of the understanding of paragraph 2 of article 580 of the civil code and how to solve the problem of contract deadlock under monetary debt under the existing rule system of the civil code.