Research On The Right To Rescind The Contract Of The Breaching Party

The case of Xinyu Company v.Feng Yumei,as published in the Bulletin of the Supreme People’s Court,upheld the breach of contract party’s claim to rescind the contract.The Civil Code,as established in Article 580,gives recognition to the defaulting party’s right to break the contract.Nevertheless,there is still a great dispute on whether the breaching party has the right of rescission,which is considered to be a deviation from the principle of strict observance of contract.In consideration of the above,this paper intends to clarify the legal controversy of the defaulting party’s right to rescind the contract,answer whether the defaulting party has the right to terminate the contract,and specify the necessary conditions for the application of the defaulting party’s right to rescind the contract,in order to confirm the feasibility of the defaulting party’s right to rescind the contract and provide ideas for the study of the defaulting party’s right to rescind the contract.First,Analysis of the legal dispute over the defaulting party’s right to terminate the contract.The conventional wisdom is that only the defaulting party has the option to break the contract.However,in order to deal with the practical dilemma,the judicial practice gradually tends to favor that the defaulting party can rescind the contract.Judicial changes led to legislative changes.After repeated disputes,the final abstract recognition of the breaching party can be under specific conditions to terminate the contract.However,there are still many arguments in the theoretical circle,and the negators think that this change is a violation of the principle of strict observance of contract and should be solved by other ways.The positivists think that the existing law can not break the deadlock of the contract,it is necessary to create the right to cancel the contract of the breaching party.Secondly,Elaborate the theoretical foundation for granting the defaulting party the right to break the contract.This paper rethinks the theory of legal value and introduces an analysis of the creation of the breaching party’s contractual right to rescind,which is in fact conducive to the realization of the harmonization of legal value.Through the interpretation of the legal system theory,it is demonstrated that the breaching party’s right to rescind the contract does not deviate from our country’s contract law system.It is clarified that the second paragraph of Article 580 of the Civil Code is the right to rescind the contract of the breaching party,and is characterized as a right of formation that requires procedural safeguards,that is,the right to form a lawsuit.Finally,the applicable conditions of the rescission right of the breaching party are regulated.The right of recognizing the breaching party to terminate the contract shall be exercised only under certain conditions.In terms of objective requirements,it is necessary to satisfy the dual requirements of the continued performance of the excluded and the impossibility of realizing the purpose of the contract;in terms of procedural requirements,it is necessary to go through litigation or arbitration;in terms of restrictive conditions,it is necessary to bear the liability for breach of contract,in order to achieve the effect equivalent to the actual performance,to prevent the breaching party maliciously breach.