| The disputes related to the right of the person who violates the contract to terminate the contract mainly focus on whether the right exists and how to define its nature.Regarding the former,there are mainly two viewpoints in the academic field:negative theory and affirmative theory;Regarding the latter,there are mainly three viewpoints: "the right to terminate","the right to request",and "the right to rescind".The viewpoint of opposing scholars that the breaching party should not be freed from the contract is too outdated.The development of civil law theory has endowed the breaching party with the legitimacy of obtaining relief.Firstly,the function of contract rescission is the liberation of obligations rather than moral criticism;Secondly,the actual meaningless and abundant alternative transactions of full performance can achieve relief for the observant party;Thirdly,the rational person hypothesis and incomplete contract theory indicate that the elimination of a contract that cannot achieve its purpose conforms to the principle of efficiency.The interpretation basis of the Civil Code for the right of a person to terminate a contract who violates the contract should be located in the second paragraph of Article 580.Only when the purpose of the contract cannot be achieved,such persons at fault have the right to terminate the contract.Therefore,it is necessary to correctly identify the purpose of the contract and determine whether the purpose of the contract has been achieved based on the judgment of the degree of breach.By limiting the expression in this article regarding the preconditions for the breaching party to exercise the right to terminate the contract to "one of the exceptions specified in the preceding paragraph" as requiring only the three exceptions in the first paragraph to be met,the right of a person who violates the contractual obligations to perform to terminate the contract can be freed from the constraints of non-monetary debt relationships."Inability to perform" should distinguish between factual and legal inability to perform.The component "not suitable for compulsory performance" is applicable to contracts with personal exclusivity or highly dependent trust relationships.The "excessively high-performance cost" should comprehensively consider the difference between revenue and cost as well as the change in cost priority.The "reasonable time limit" for the creditor to request performance should be determined based on the actual situation,and when applied to paragraph 2,it is more stringent than paragraph 1.Although the "Minutes of the National Conference on Civil and Commercial Trials of Courts" cannot be directly cited as the basis for adjudication,it can be used as reasoning content to have an impact on the outcome of adjudication.The expression "manifestly unfair" further reduces its reproach ability in the moral field;The expression "there is no malicious breach by the breaching party" limits the subjective state of the breaching party.Article 580 of the Civil Code has some flaws in the system structure,which can be contained through interpretive theory.The legal consequences of rescission of a contract by a person who violates the contract can be manifested in two aspects: contract termination and compensation for damages.As a special right of formation,the breaching party’s right to terminate the contract must be exercised through litigation or arbitration,so the contract shall be terminated with the effective judgment.This also helps to protect the observant party.Based on the remedies provided to the person who complies with the contract,this result does not enable the breaching party to obtain a defense against the person who complies with the contract requiring it to bear the liability for breach of contract.The calculation of compensation for breach of contract requires specifying the proportion of contract proceeds,money to be returned,and trust interests in the compensation for damages,and conducting a typological study of typical cases. |
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