On The Judicial Application Of The Rules Of Breach Of Contract By The Parties

Breach of contract by both parties is a major feature of China’s civil law,and it is not uncommon in practice.Scholars have long been at odds on the concept of breach of contract between the two parties,due to the lack of exactness and lucidity in the legal regulations.This has led to a lack of systematic and thorough research into the subject.To achieve the objective of more effective guidance of judicial practice,prevent the rules misused of the parties’ breach of contract,and pursue a more just judgment,the author divides this substance into six pieces,including these four pieces,introduction and conclusion:The first part is an overview of the parties’ breaches.Starting from the concept of breach of contract by both parties,the author also leads to the theoretical controversy in the academic circles on the breach of contract between the two parties,and through analysis and discussion,he concludes that the current positioning of the breach of contract by the two parties is appropriate as a rule,and points out that the breach of contract between the two parties can be divided by "implication" and "consideration" as the type criteria,and systematically sorts out various types and typical cases of the bilateral breach.The second part is to analyze the specific constituent elements of both parties’ breach of contract,and affirms the legal constituent elements of breach of contract by both parties as the three most basic constituent elements of universal applicability: "often existing in the same two-party contract,there is a breach of contract,and both parties have breached their contractual obligations".In the third part,through a large number of similar case search work,the author discusses in the form of typical case analysis the diversities between the parties’ breach and derogation rules,fault offset,unilateral breach of contract,and the circumstances and reasons for confusion,so as to prove that there are indeed a large quantities of cases misused the rules of breach of contract by both parties.The fourth part analyzes the common reasons for misuse based on the previous judicial practice cases,and puts forward the following three trial ideas and targeted application suggestions based on the reasons,namely,"clearly and uniformly determining the constituent elements of breach of contract by both parties;Use the rules of " implication " and " consideration " to distinguish between simple and complex breaches of contract between the parties;During the hearing,the judge shall take the initiative to explain the exercise of the right to defend the performance of the defence".In addition,corresponding application suggestions are also put forward for the common problems of the application of the deposit penalty and liability of both parties for breach of contract in practice,that is,"the application of the deposit penalty shall be excluded for breach of contract by both parties;The subjective level,the degree of fault and the degree of loss caused should be used as a comprehensive judgment to determine the liability of both parties for breach of contract under various circumstances."...