Research On The Termination Of Contract By The Breaching Party Under Contract Deadlock

Whether in the legislative or judicial fields,contract deadlock has not been effectively resolved.Before the promulgation of the Civil Code,Article 48 of the Nine Minutes of the People’s Republic of China systematically regulated the termination of contracts by the defaulting party.This regulation is stricter than the first and second draft of the Civil Code Contract Compilation,Article 353(3),and Article 580 of the Civil Code,which set the requirements for the termination of contracts by the defaulting party.However,there are many ambiguous clauses in the requirements,which gives judges more room for reasoning and discretion in judicial practice,Different judgments may occur in similar cases.And the "Nine Minutes of the People" cannot be used as a basis for judgment,and can only be used for reasoning.After the promulgation of the Civil Code,Article 580 granted the defaulting party the right to request termination of the contractual rights and obligations.In judicial practice,it is usually based on this clause to break the contract deadlock and allow the defaulting party to terminate the contract.Through the summary of legislative and judicial status,it was found that the provisions of Article 580 of the Civil Code and Article 48 of the Nine Minutes of the People do not meet practical requirements.The two regulations set too many requirements for the defaulting party to terminate the contract,and the comprehensive application of these requirements will make the scope of application for the defaulting party to terminate the contract very narrow.Therefore,in judicial practice,judges often choose elements from different cases to reason and make judgments.By promoting legislation through judicial means,the author has found that the elements of "non monetary debt","inability to achieve the purpose of the contract","obvious unfairness",and "good faith" are not suitable in judicial practice to restrict the defaulting party from terminating the contract.For other elements,the author also seeks experience in judicial practice to clarify their meaning and specific scope of use.The key argument is that the performance cost is too high,which is clearly defined as the debtor’s performance cost exceeding 30% of the creditor’s performance benefits.The malicious breach is defined as malicious to fundamental breach,which is manifested as intentional damage to the interests of creditors or opportunism behavior.Clarifying the specific requirements for the breaching party to terminate the contract is the main content of research on the breaching party’s termination of the contract.In addition,the article also argues that the exercise of the breaching party’s termination of the contract should be limited to only judicial termination.In the process of judicial termination,the necessary expenses for the non compliant party to participate in the litigation and hire a lawyer should be borne by the defaulting party.The defaulting party’s compensation for damages to the non compliant party should still ensure the non compliant party’s performance interests.The establishment of a system for the breaching party to terminate the contract is very difficult.On the one hand,it is necessary to consider breaking the deadlock,and on the other hand,it is even more important to pay attention to the binding force of the contract and ensure the reasonable expectations of the parties.