On The Termination Application Right Of The Breaching Party For Continued Performance Of The Contract

The path to breaking the "contract deadlock" is as follows: in the "Nine Minutes of the People’s Republic of China" and previous judicial practice,people’s courts and arbitration institutions grant the defaulting party the right to terminate the contract by granting it the right to terminate,and consider factors such as whether the defaulting party maliciously terminates the contract,whether it is clearly unfair to require the defaulting party to continue performing the payment obligation,whether the non breaching party violates the principle of good faith and whether the contract objectively has no possibility of further performance,Decide whether to terminate the contract by judgment;During the draft of the Civil Code,the theoretical controversy mainly focused on whether to grant the defaulting party the right to terminate the contract in order to break the contract deadlock;Since the implementation of the Civil Code,the issue of the path to resolving contract deadlock has shifted from the dispute over whether to grant the defaulting party the right to terminate to the normative interpretation of Article 580 of the Civil Code.The legal nature of the defaulting party’s application for termination of the contract is the right to apply for termination of the contract.The defaulting party has the right to terminate the contract in a procedural manner,which is the termination of the debt relationship between the parties that has not been fully fulfilled.The right of the defaulting party to terminate the contract is an exception to the principle of strict adherence to the contract,adhering to legal principles such as prohibiting abuse of rights,seeking truth from facts,and pursuing the efficiency value of the law.Procedurally,if the breaching party applies to the people’s court or arbitration institution for termination of the contract,the non breaching party shall terminate the contract in accordance with Article 563 of the Civil Code,and apply Article 533 of the Civil Code,"Re negotiation Procedure",by analogy.The "date of judgment" should be used as the time for termination of the contract.In special circumstances,the people’s court or arbitration institution shall reasonably determine the time for termination of the contract based on the principle of fairness.The specific reasons for the defaulting party’s application for termination of the contract include: inability to perform in law or fact,inability to perform the debt subject matter compulsorily or excessively high performance costs,and failure of the creditor to request performance from the debtor within a reasonable period of time.In the event of legal or factual inability to perform,the debtor’s obligation to pay shall be directly extinguished.In cases where the creditor requests compensation or a third party substitutes for performance,the people’s court or arbitration institution shall not make a judgment to terminate the contract.The debtor claims the defense on the basis that it is not suitable for compulsory performance and the cost of performance is too high.The defense should be permanent.If the debtor is unable to perform the pending payment for the time being,it belongs to delayed payment.The cost of performance is too high due to changes in market prices,but the duration of the contract between the debtor and the creditor is short and the debtor has strong risk resistance,the debtor should continue to perform the contract.The creditor’s failure to request performance from the debtor within a reasonable period of time refers to the fact that the debtor has already breached the contract during performance,and the creditor has not requested performance from the debtor.The obligation to pay and treat payment is directly extinguished,rather than giving rise to the debtor’s right of defense against the creditor.The second paragraph of Article 580 of the Civil Code states that "the purpose of the contract cannot be achieved",which means that the purpose of a unilateral contract cannot be achieved,and whether the subjective purpose of the defaulting party is "non malicious" should also be considered.There is also a problem of contract deadlock in monetary debts,and the contract deadlock in monetary debts should be resolved by applying the rule of termination for significant reasons.By analogy and applying Article 45(3)of the Partnership Enterprise Law,Article 40(3)of the Labor Contract Law,and Article 41 of the Labor Contract Law,the general rules applicable to termination rules for major events are abstracted to solve such problems.The premise of application is based on the trust relationship between both parties;The applicable conditions are that there have been significant changes in the objective circumstances of fulfilling the contract,making it difficult for the debtor to continue performing;The parties shall notify the other party of the termination notice and provide reasonable explanations.