| The termination of the contract comes from judicial practice,aiming at how to solve the problem of contract deadlock.In 2006,the case of the Supreme People’s Court "Xinyu Company v.Feng Yumei Shop Sales Contract Dispute"(hereinafter referred to as "Xinyu Case")set a precedent for "the breaching party terminating the contract" in the judicial field.The subsequent trial practice cited a large number of case rules established by "Xinyu case",and gradually formed the standard of case,which also contributed to the emergence of Article 48 of "The prosecution" of "Minutes of the National Civil and Commercial Trial Work Conference"(hereinafter referred to as "Nine People Minutes").The civil code of the People’s Republic of China(hereinafter referred to as "civil code")during the compilation,the right specification,scholars on the default party contract termination right into the code,in what form into the code is still controversial,legislators will eventually remove the civil code of article 580 of the money debt cannot perform under the right of defense.This paper,first of all,sorts out the controversial points of the contract termination right of the breaching party,demonstrates the legitimacy and irreplaceability of the right,and,combined with the analysis of typical cases,studies the application path of the right specification under the civil Code system.The article is written as follows:The first chapter summarizes the theoretical basis of the defaulting party’s right to terminate the contract.The concept of the termination right of the contract is briefly expounded,and the academic viewpoint is summarized as "negative" and "affirmative"."Negative theory" insists that the original contract law system does not give the breaching party the right to terminate the contract,and the termination of the contract by the breaching party violates the basic concept and morality of the contract law."Affirmation" holds that the conditional right of the breaching party to terminate the contract is fully justified.From the perspective of the system,the contract termination itself is also the embodiment of the relief function of the civil law.Secondly,it is beneficial to balance the interests of both parties and promote the resource allocation.The second chapter summarizes the origin of the breaching party’s right to terminate the contract and the Contract Law of the People’s Republic of China(hereinafter referred to as the Contract Law).The contract termination right of the breaching party not only has rich judicial practice,but also has a broad legal basis.In this chapter,through sorting out the relevant laws and relevant provisions of the draft Civil Code,it can be seen that the breaching party’s right of contract termination has a deep origin with article 94 and Article 110 of the Contract Law,and the right of the defaulting party is not the product of the revelation.The third chapter arranges the application of the breaching party’s contract termination right before and after the effective force of the Civil Code in typical cases.First,compared with the legal basis behind the reasoning,whether before or after the effective effect,factors such as "fairness and justice","efficiency","avoid resource waste" and "it is difficult to achieve the contract purpose" are frequently mentioned in the reasoning,which can be seen that the defaulting party to terminate the contract is an inevitable choice.Second,the applicable civil code of the judgment,found that the second paragraph of article 580 of the civil code "the" parties "" performance cannot cause the contract purpose cannot achieve "in practice understanding is not consistent,the contract is not clear,the court for the civil code of article 580 reasoning,often through" contract is not suitable for compulsory performance "" cost too high " word with.Under what conditions the court should grant termination in the case is ambiguous.These need to be further explained on the premise of meeting the original intention of the legislation.This chapter is also the chapter of the paper writing.Through the analysis of the case judgment and reasoning,the legitimacy of the termination of the contract is affirmed in practice,and the problems existing in the exercise of the right are found in the judicial practice.The fourth chapter section proves the legitimacy of the breaching party’s right to terminate the contract.It is pointed out that the contract termination right of the defaulting party conforms to the standard function and purpose of the contract termination system.From the basis of jurisprudence,the right is the pursuit of efficiency value.The previous relief path "principle of change of situation","principle of impairment" and "actual performance" are not enough to solve the problem of contract deadlock,and the existence of the contract termination right of the defaulting party is irreplaceable.The fifth chapter section makes suggestions on the application of the breaching party’s right to terminate the contract.Starting from the applicable premise,the applicable requirements,the applicable legal effect and the interpretation of the scope of application one by one,the application path is clear.On the premise of the application of rights,it should be seen that paragraph 1 and paragraph 2 of Article 580 of the Civil Code cannot be separated.These two paragraphs stipulate the two important parts of the contract for the breaching party to terminate the contract,which have a logical causal connection,and should be fully demonstrated in the judgment reasoning.Strictly define the applicable requirements of the specification,and reasonably restrict the breaching party and the non-breaching party.Clarifying the time point of the termination of the breach of the contract is more in line with the original legislative intention of the standard. |
