중국법상 계약위반자의 계약해제권

There is no explicit provision in the Civil Code of the People’s Republic of China that recognizes the right of termination for the breaching party. Academic views are divided between a negative interpretation and a limited positive interpretation regarding this right, and conflicting judicial precedents coexist, either acknowledging or rejecting the breaching party’s ability to terminate a contract. In this context, questions arise as to whether the breaching party’s right of termination of the contract can be recognized through legal interpretation. If so, the conditions and effects of exercising this right must also be clarified. It is reasonable to recognize the breaching party’s right of termination based on an interpretative approach to the current law. Articles 563 and 580 of the Civil Code leave room for interpretation. Specifically: Article 563 does not restrict the subject of the right of termination to the party that has performed the contract but refers to the “party” generally. The breaching party’s right to terminate the contract does not take effect unilaterally; rather, establishing this right requires the court or an arbitration institution to determine whether the conditions for termination are met. Academic interpretations of Article 580(2) have construed it as granting a right of termination to the breaching party, based on the legislative background, the structure of breach of contract liability, and the entire system governing the termination of contract. If acknowledging the breaching party’s right of termination, the conditions for exercising this right follow Article 580: The impossibility of the performanceof a non-monetary obligation must exist. The impossibility of performance must prevent the purpose of the contractfrom being fulfilled. The party must submit a claim for termination to the court or an arbitration institution. The court or arbitration body reviews the necessity and justification of the termination based on the claim of the party who meets the requirements for exercising the right of termination request is upheld, the contract is terminated. However, the breaching party remains responsible for damages caused by the breach. This approach is aligned with the principle of the binding force of contracts.