Study On The Right Of Rescission Of The Breaching Party Under The Contract Deadlock

Recent years,the cases of contract deadlock have been on the rise year by year,and the contract deadlock caused by the defaulting party in the performance dilemma is a difficult problem of judicial practice to be solved urgently.Due to the lack of statutory and unified norms as a guide,the court’s handling of contract deadlock cases is uneven,and academic research only focuses on the theoretical leve and disregard the practical problems,so that the practical problem of contract deadlock can not be solved.Based on the analysis of existing theoretical studies and judicial cases,this paper studies on judicial dissolution of the breaching party under the contract deadlock.The full text consists of the following five parts:The introduction raises questions and gives a brief overview of existing research.First of all,the typical case Xinyu case leads to the central topic of the breaching party’s request for rescission of the contract.So far,the issue is limited to the discussion of the breaching party’s right of rescission under the situation of contract deadlock.Secondly,the existing research is briefly summarized:the literature is summarized and analyzed according to the identification of contract deadlock and whether if give the defaulting party the right to rescind under the contract deadlock。The first part is about the analysis on right to cancel nowadays under the contract deadlock.From the judicial point of view,through the method of collecting and analyzing 85 judicial documents,the distribution of cases,the number of cases,the procedure of cases and the position of adjudication are analyzed.In summary,this type of case shows the situation that the number of cases is gradually increasing and the industry is widely distributed.Under the contract deadlock,the court mostly supports the judicial relief right of the defaulting party.From the legislative point of view,through the legislative background,the legislation’s provisions on the right of rescission of the breaching party under the contract deadlock,and its existing limitations,this paper analyzes the legislative status of the rescission of the breaching party under the contract deadlock in China.The second part,by analyzing the main views about breaking the contract deadlock in the judicial practice field and theoretical research field,to demonstrate the legitimacy of the judicial relief for the breaching party under the contract deadlock mainly from three angles of rationality,feasibility and necessity.The third part demonstrates the applicable conditions for the termination of the breaching party under the contract deadlock.First of all,it is clear that the applicable premise for the breaching party to terminate is there being the contract deadlock existing.Contract deadlock means that during the performance of the contract,the debtor is in a non-malicious subjective state,and unable to extricate itself from the contractual relationship due to lack of the right to terminate the contract,the creditor refuses to exercise the right to terminate the contract,and the parties to the contract are unable to reach the agreement to terminate or change the contract afterwards,resulting in the long-term stagnation of the contractual relationship.The essence of the contract deadlock includes "the abuse of right to rescind","the non-breaching party’s breach of credit","the contract binding force perfection theory",and "the creditor’s dual identity opposition theory." Through the analysis of the essence of the contract deadlock,we can see that the essence just is the unity of opposites of the dual identities of the observant party and the breaching party.Thus,from the perspective of the defaulting party and the observant party,the applicable conditions for the termination of the defaulting party under the contract deadlock are discussed.Specifically,the breaching party does not be a malicious subject state,and if the breaching party continue to perform,obviously,its unfair.On the other hand,there will be a violation to the principle of good faith if the observant party refuse to perform the contract.The fourth part is to demonstrate under deadlock the legal consequences of breaching the contract.The main contents include the effective time to terminate,the breaching party ought to undertake the liability for breach and it is unrelated to the contract deadlock,the calculation of damages.It mainly refutes the termination of the contract from the date of the notice and the time point when the copy of the indictment reaches the other party,and supports the claim that the date of the judgment becomes effective is the date of termination of the contract.The termination of the contract does not affect the breaching party’s undertaking of the liability.The scope of compensation for damages is based on the theory of performing interests,and the scope of compensation for damages is limited to some extent by using the rules of predictability and the obligation of derogation.So as to achieve the dynamic balance between the interests of the observant party and the defaulting party...