| Article 580 clause 2 of the Civil Code Acknowledge the right of the breaching party to terminate the contract from the legislative level.The research focus is no longer whether the defaulting party has the right to rescind the contract.But as a right excessive in our country’s judicial practice,how to realize the adaptation of contract dissolution right of breaking party and "Civil Code" is a key question that needs research in the era of Civil Code,to be specific,it can be subdivided into the right qualitative question and the right exercise question under interpretation theory.First of all,Making clear that the defaulting party has the right to rescind the contract is the basis of subsequent research.In theory,the default party’s right to rescind the contract conforms to the requirements of substantive justice and efficiency value,the "liberation" function of contract rescission and the right system of contract rescission.At the standard level,based on the legal interpretation of Article 580 clause2 of the Civil Code,the property of the defaulting party’s right to rescind the contract is demonstrated.Secondly,it is necessary to analyze the judicial operation of the defaulting party because the right to terminate the contract originates from judicial practice.Through the analysis of empirical data,it is found that judicial practice tends to recognize that the breaching party has the right to terminate the contract to a certain extent,but there are great differences in the scope,conditions and legal consequences of the right to apply.Thirdly,it analyzes the problems in judicial practice.In terms of the scope of application,the main dispute is whether money debt can be applied,which is due to the misdirection of the theory that "money debt does not exist can not be performed" and the contradiction between the interpretation of the meaning of Article 580 clause 2 of the Civil Code and the practical needs.In terms of application conditions,the main problems are the disunity of the constituent elements and the unclear subject of "contract purpose",which originates from the confusion of the system interpretation of Article 580 clause 2 of the Civil Code.In terms of legal consequences,there are two problems: the disunity of the time when the breaching party terminates the contract and whether to deal with the liability for breach of contract at the same time,which is due to the unclear nature of the rights enjoyed by the breaching party and the different considerations of the principle of "no complaint,no trial".Finally,in view of the provisions of Article 580 clause 2 of the Civil Code,we should solve the relevant problems of the right of the breaching party to rescind the contract is viewed from the angle of interpretation.In the scope of application,should be extended to money debt;In terms of application conditions,the entity conditions shall be that the purpose of the contract cannot be realized due to the failure of performance and the breach party’s failure to exercise the right of rescission violates the principle of good faith,and the procedure conditions shall be litigation or application for arbitration.In terms of legal consequences,the contract shall be terminated when the copy of the indictment is served on the other party,and the liability for breach of contract shall be dealt with together. |
