A Probe Into The Dissolution Of The Breaching Party’s Contract From The Perspective Of The Chinese Civil Code

Following the Xinyu case announced in 2006,judicial cases concerning the right of the breaching party to terminate the contract have been increasing year by year,and the breaching party’s claim to terminate the contract has become a judicial phenomenon that cannot be ignored.The statistical results of relevant judicial decisions from 2020 to early 2021 show that the vast majority of judicial decisions support the request of the breaching party to terminate the contract.The basis of the judgment is mainly based on the principles of fairness and good faith in Articles 5 and6 of the original Contract Law,as well as Article 94 and Article 110: Only a very small number of rulings dismiss the claims of the breaching party,and the reason for rejection is that it is against fairness and good faith to support the breaching party to terminate the contract.During the drafting of the "Civil Code",academia debated endlessly about whether to clarify the breaching party’s right to terminate the contract,forming a positive and negative theory.It must be said that it also contains two viewpoints: the unilateral right of the breaching party and the right of the breaching party to apply for cancellation.The difference between the two is that the former grants the breaching party a unilateral right to terminate the contract with the nature of the right of formation in private law,while the latter emphasizes that the breach must apply to the court or arbitration institution for termination of the contract.The main point of the negation theory is that there is a lack of legitimacy basis for giving the breaching party the right to terminate the contract.With the promulgation of the "Civil Code",the debate on how to deal with the termination of the contract of the breaching party has shifted from the legislative theory to the interpretation theory.Examining the various rules of the Civil Code on the termination of contracts,in addition to the rule of circumstance change in Article533,the understanding of "parties" and "because of other circumstances" in Article563,paragraph 1,leaves much room for interpretation.;Because the application of Article 580 is subject to the constraints of "non-monetary debts" and creditors requesting to continue to perform procedures,this restricts the function of this rule in breaking contract deadlocks.This article argues that the “party” in Article 563 shall be understood from the literal interpretation rules to include both the observant party and the breaching party,giving the breaching party room to appeal for termination of the contract;in view of the phenomenon that the lessee breached the contract and claimed to terminate the contract in judicial judgments Typically,monetary debts should also be included in the applicable rules of Article 580;at the same time,the procedural constraints between paragraphs 1 and 2 of Article 580 are loosened,allowing the defaulting party to directly appeal for contract termination instead of initiating the creditor’s In the procedure,the exclusion will continue to be performed through the defense.Out of the principle of fairness and good faith and the maintenance of transaction order,the breaching party must terminate the contract through judicial remedies,and must satisfy the subjectively there is no malicious breach of contract,and objectively continue to perform its apparent unfairness and other requirements.The "non-attributable" and "significant changes" of the circumstance change rules are used to determine whether the breaching party has subjective malice and whether it is difficult to perform.