20 19 1 1.8 the Supreme People's Court officially released the Minutes of the Civil and Commercial Trial Work Meeting of the National Courts (hereinafter referred to as the Minutes of Nine Persons), which shall come into force as of the date of promulgation. Minutes of Nine Citizens interprets and clarifies many hot issues in civil and commercial trials, including the application of general principles of civil law, company disputes, contract disputes, guarantee disputes and so on 12, covering a very wide range. Among them, Articles 46 to 50 of Nine Minutes provide special guidance on the exercise and legal consequences of the right to terminate the contract. The Supreme Law clearly points out that the minutes of meetings are not judicial interpretations and cannot be cited as the basis of judgment. However, when the reasons for applying the law are specifically analyzed in the "We think" part of the judgment document, it can be reasoned according to the relevant provisions of the minutes of the meeting. According to the relevant provisions of the Contract Law, this paper makes the following brief analysis on the termination of the contract.

Extended data:

There is a premise for the right of rescission, either the party who agreed to enjoy the right of rescission or the party who is entitled to the right of rescission according to the law. Whether it is agreed or legal, it must be the party who enjoys the right of rescission. Otherwise, even if a notice is given, the effect of terminating the contract will not occur.

Articles 46 and 48 of Nine Minutes clearly stipulate that in principle, only the observant party has the right to terminate the contract, and the breaching party has the right to terminate the contract under special circumstances:

Article 46 of the Minute of Nine Persons stipulates that if one party issues a notice to terminate the contract, whether the notice has the effect of terminating the contract shall be examined whether the party that issued the notice has the agreed or legal right to terminate the contract. Only when it has the right to terminate the contract, the notice it sends has the legal effect of terminating the contract. The party who has no right to terminate the contract sends a notice of termination, even if the other party does not respond, it does not have the legal effect of terminating the contract.

Article 48 of People's Nine Minutes stipulates that under special circumstances, if the performance of some long-term contracts is deadlocked and the observant party fails to propose to terminate the contract, the breaching party also has the right to sue to terminate the contract, but it should meet a series of conditions: there is no malicious breach of contract by the breaching party, and continuing to perform the contract violates the principle of good faith for the breaching party obviously unfair and the observant party to refuse to terminate the contract. If the people's court decides to terminate the contract, the breaching party's liability for breach of contract cannot be reduced or exempted due to the termination of the contract.

This nine-person summary does not directly give the breaching party the right to terminate the contract, but stipulates that the breaching party may request the people's court to terminate the contract under certain conditions, and the people's court may decide to terminate the contract according to the facts of the case. This clause, which gives the breaching party the limited right of rescission, conforms to the proper meaning of the principle of fairness, honesty and credit in contract law.

However, the breaching party's breach of contract is an established fact, and even if it is given the right to terminate the contract, it should also bear the responsibility for breach of contract. According to the principle that no one can benefit from breach of contract, if the breaching party brings a lawsuit to terminate the contract, the court shall state that the observant party still has the right to demand the breaching party to bear the corresponding liquidated damages. After the termination of the contract, the people's court shall reasonably determine the scope of liability for breach of contract according to the rules of impairment and profit and loss balance.

In the process of concluding a contract, the parties may stipulate the conditions and time limit for exercising the cancellation right in the contract, but they must strictly abide by the principle of good faith. In practice, it is common that the defaulting party breaches the contract very slightly, and the observant party still exercises the right to terminate the agreement and demands the defaulting party to pay the excessive liquidated damages. Although the Contract Law stipulates that the observant can exercise the cancellation right, this right should be restricted and not abused. Therefore, Article 47 of Nine People's Minutes aggravates the people's court's obligation to review the seriousness of breach of contract, which is conducive to avoiding the imbalance of rights and obligations of both parties and maintaining the fairness of contract transactions:

Article 47 of the Minutes of Nine Citizens: "The people's court shall examine whether the degree of breach by the defaulting party is significant or minor, whether it affects the realization of the purpose of the observant party's contract, and decide whether to terminate the contract according to the principle of good faith. The degree of breach of the contract by the breaching party is obviously slight, which does not affect the realization of the contract purpose of the observant party. If the observant party requests to terminate the contract, the people's court will not support it; On the contrary, it will be supported according to law. "

The above clauses fully apply the principles of "good faith" and "fairness", saying that the contract may not be terminated if it meets the requirements of the agreed right to terminate. The court also needs to review two points, one is to review the degree of breach of contract, and the other is to consider the purpose of the contract. If the breaching party's breach of contract is obviously slight, which will not affect the fulfillment of the observant party's contract purpose, and the court decides that the termination of the contract will cause serious imbalance of interests and cause obvious unfairness to one party's interests, then even if the breaching party's breach of contract meets the termination conditions agreed in the contract, the observant party will not enjoy the right to terminate.

The entry into force, performance and dissolution have a great impact on the development and conduct of commercial activities. The parties to a contract shall follow the principle of good faith, use the system of contract termination cautiously, and earnestly safeguard their rights and interests.