Judicial Recognition Of Termination Of The Contract By The Breaching Party

From the "Xinyu Case" to the "rescission right of the defaulting party" in the draft of the contract of the Civil Code,and then its deletion in the formal promulgation,it reflects the impact on the traditional position that the rescission of the contract can only be put forward by the non-defaulting party,and the prudent attitude towards the rescission of the contract by the defaulting party,which has aroused great discussion in the theoretical and judicial circles of Chinese law.At the beginning,there are gaps in relevant theories and legal provisions of party breaking the contract in our country,and the corresponding judicial experience is also lacking.So far,although relevant theoretical studies have emerged successively and deepened,and such cases have become increasingly frequent in the judicial practice,there are great differences in the scholars’ theories and the reasons and results of judicial judgment.There are legislative deficiencies in both the substantive and procedural conditions for the defaulting party to terminate the contract,and the court exercises its discretionary power to try and make a judgment,resulting in the phenomenon of "different judgments in the same case".Moreover,due to the legislative blank,the disunity of theoretical theories and judicial experience,the parties’ expectation of the judgment result is easy to cause their disapproval of the judgment,which reduces the efficiency of dispute handling and increases the pressure of handling cases.This paper selects the case of the defaulting party to terminate the contract,aiming at studying the specific conditions of the defaulting party to terminate the contract.On the premise of the absence of legislation,Article 48 of Jiu Min Ji Yao provides guidance for the handling of such cases.However,due to its nature,it cannot be directly used as the basis for trial.Therefore,this paper analyzes and studies the rationality and necessity of three specific conditions of this article as the constitutive conditions of the entity for the defaulting party to terminate the contract,discusses the specific identification and application of the conditions,and analyzes the case in this paper on this basis.To resolve whether the contract involved in the case should be terminated.It is clear that the defaulting party is given the initiative to terminate the contract in the case of exclusion of continued performance and failure to achieve the purpose of the contract.The court carries out substantive trial on the three requirements of "non-malicious breach of contract","manifestly unfair" and "principle of good faith",not limited to the principle of strict adherence to the contract,and confirms the judicial termination of those who meet the conditions.The legislation clarifies the substantive and procedural requirements of judicial dissolution,and regulates its legal consequences in detail,which is conducive to the expectation and balance of the interests of the non-breaching party and the breaching party under the contract deadlock,so as to solve the contract deadlock efficiently and smoothly.