On The Applicable Conditions Of The Right To Rescind The Contract Of The Breaching Party

In the past,the general view was that only the observant party could terminate the contract.However,the communique case "Xinyu case" supported the defaulting party to terminate the contract for the first time,which triggered a heated discussion in the academic circles.From paragraph 2 of article 353 of the contract series of the civil code of the People’s Republic of China(Draft for the second review)(hereinafter referred to as the draft for the second review),to Article 48 of the minutes of the national civil and commercial trial working conference of the courts(hereinafter referred to as the minutes of the ninth civil Conference),and to Article 580 of the civil code of the People’s Republic of China(hereinafter referred to as the civil code),it can be seen that the legislator wants to break the deadlock of the contract,Determination to establish the system of the right to terminate the contract of the defaulting party.The issue of the right to rescind the contract of the defaulting party has a sufficient judicial practice basis.Judicial cases involving the termination of the contract by the defaulting party are emerging all over the country.Through case analysis,it is found that local courts have different attitudes towards whether the defaulting party should be given the right to terminate the contract,and different judges have different understanding of the applicable conditions of the right to terminate the contract.The reason is that the basis of application is not unified and the conditions of application are not specific.By analyzing the purpose of article 580 of the civil code and the types and attributes of the rights stipulated,this paper finds out that article 580 of the civil code is the legal basis for the right of the defaulting party to terminate the contract.It further distinguishes the application scenarios of article 580 of the civil code and Article 48 of the minutes of the Ninth People’s Congress.Article 48 of the minutes of the Ninth People’s Congress is used to solve the contract deadlock in long-term contracts,and article 580 of the civil code is used to solve the contract deadlock in non monetary debts.In order to resolve the differences on the application of the system of the right to rescind the contract of the defaulting party when the non monetary debt cannot be performed,this paper puts forward the viewpoint of typological analysis on the applicable conditions of article 580 of the civil code.First of all,the basis of typology is found in the normative structure of article 580 of the civil code,which is divided into prerequisite and substantive conditions.Then,it makes a typological analysis of the preconditions and substantive elements in turn.Through normative analysis,this paper reveals the normative spillover effect and embedded conditions of article 580 of the civil code,and points out that on the basis of meeting the preconditions,the defaulting party needs to meet the substantive conditions such as "the purpose of the contract cannot be realized","the creditor has no legitimate interest in the existence of the contract" and "the creditor has not claimed the right to claim payment and its derivative interests" in order to obtain the right to terminate the contract.Finally,combined with the previous analysis,this paper puts forward suggestions to improve the applicable conditions of article 580 of the civil code from three aspects.First,the renegotiation procedure in article 533 of the civil code is applied by analogy as the pre procedure of the system of rescinding the contract by the defaulting party,which can not only respect the autonomy of the parties,but also find out whether the defaulting party meets the substantive conditions for exercising the right to rescind the contract,so as to save judicial resources.Second,clarify the applicable standards of the preconditions for the exercise of the right to rescind the contract by the defaulting party,mainly clarify the nature of the "reasonable period" in the preconditions through legal interpretation,and specify the starting point of the "reasonable period" and the objective maximum period of the "reasonable period".Third,the substantive conditions of the right to terminate the contract of the defaulting party are explained by distinguishing the types of breach of contract of the defaulting party,clarifying the judgment standard of "the purpose of the contract cannot be achieved",applying Article 48 of the minutes of the Ninth People’s Congress to explain the "legitimate interests" in article 580 of the civil code,and clarifying the way the creditor requests to perform.