On the breaching party's right to apply for contract cancellation and comment on Article 580, paragraph 2 of the Civil Code
ZHANG Su-hua,YANG Xiao-tong
(Wuhan University, Wuhan 430072, China)
Abstract: After reviewing the predecessor of Article 580, Section 2 of the Civil Code, it can be found that this article was established to resolve the problem of contract deadlock and make up for the structural defects of Article 110 of the Contract Law. This clause gives the breaching party the right to apply for contract cancellation rather than the contract cancellation right. Under the impasse of the judicial practice on the contract, the attitude of the breaching party applying for termination of the contract has also undergone a change from negative to positive. Reexamination of the right to terminate the contract from the perspective of interpretation shows that the right to terminate the contract enjoyed by the observant party is a complete right to terminate the contract, which can be exercised either by notice or through public relief channels; The right is to form the right to sue. The court should apply to the breaching party to terminate the contractual rights and obligations through judicial release. It is not the first in the Civil Code, and there is a precedent in the contract law system. From the position and function of the application for the right to terminate the contract, as well as the limitation and justification, the granting of the right to apply for the termination of the contract by the breaching party is the legislative response to practice. It is not arbitrary for the breaching party to exercise the right to apply for contract cancellation. Although this clause has some flaws in the system, it can be resolved by a reasonable explanation.
Keywords: right to apply for contract cancellation; contract cancellation right; contract deadlock; judicial termination; breach of contractor