The Legislation Prove Justification Of Efficient Breach System

Efficient breach of contract is that the benefit what one will get from breaking contract is over expected interests that he will get from carrying out the contract for the other side. It's from the theories of economic analysis of law, which is on the basis of the New Freedom Economics Efficient breach of contract drew the concept'efficient'from the economics field into the Contract Law, which make up the imperfection of the simple analysis of law. The system of efficient breach comes from England and American and seldom emerges in the system of Statute book countries including China. The paper tries to discuss and study this theory deeply based on the former idea and united with the foreign legislation and doctrine. Also the paper try to put forward some immature idea and expect to perfect the theory of the breach responsibility by taking advantage of the economic spirit and the principle of efficiency. The paper consists of four parts in total.Part one The definition of efficient breach systemFirst The origin of the theory of efficient breach of contractScholar majoring in economic analysis of law put the theory of efficient breach of contract forward. At first the economic analysis of law also named economics of law, it is a branch of learning which apply the method and idea of economics to learn the theory and specific problem of law. It raised with deep reason of economy and reality background which origin include utilitarianism idea,institution economics and so on, among them the contribution of Posner and Coase is too tremendous. The west economics relatively all-round absorbs the idea and method of all sorts of economics tributary, they got the conclusion'efficiency is all'. Posner believes that the function of Contract Law is mostly to defend the exchange intention and decrease the complexity and corresponding cost. It provide any accidental factor in the trade which sometimes will be rejected for the party, helping him forecast the accident to arrange the transaction practically, with that Posner arise the efficient breach of contract. He think that the breach can protect former efficiency except for using resource efficiently, the party will be gratified at the normal occasion, but when the breach benefit is over that of not performing the contract, the breach will be encouraged mostly.Second The character of efficient breach of contractThe important condition of it is the following: the contract is legal; the raising of it must be after the founding of contract; the party must make the other know the performance of breach be explicit, definite and voluntary; the party can do the contract but not do it and the one's goal is to get benefit; the breacher's behavior is serious. The influence of efficient breach is to say the effect on law to parties after breach, and the right and duty are not alike on different occasions.Third The classification of efficient breach of contractAccording to the different of the accident that lead to efficient breach, we can divides into'does not fulfill the contract compared to fulfill the efficiency which the contract is profitable to break a contract'and'fulfills the contract to compare does not fulfill the contract to lose a greater efficiency to break a contract'two kinds, or divides into'the contract to fulfill the side the efficiency to break a contract'and'the contract accepts fulfills the side the efficiency to break a contract'two kinds.Part two The legislative rationale of efficient breach systemFirst, from the legal value angle, the efficient breach system to manifest in each aspect'the freedom','the justice','the efficiency'and so on the legal principle theory of law value; Next, from the agreement provisional constitution principle aspect, the efficiency broke a contract not only broke through the traditional mainland legal system theory fetter, was the contract law historical development reasonable result, moreover has manifested the economic and the legal science dual value. Part three The legislation of efficient breach system of other countryFirst The efficient breach system of Common lawIn the country of Common law, the efficient breach system obtain the legal science theory and the practice department's universal approval and accepts, this system is even read in the contract method textbook. At present, the common law country related efficient breach contract, mainly manifests in the judicial legal precedent and business statute book. The Common law country to involves the efficient contract the dispute case processing way, mainly has following several kinds: First, the sever ability of contract fulfills; Second, the payment penalty or compensates opposite party economic loss;Third, breaks a contract the side to be authorized to the request payment to fulfill the partial faith benefit; Fourth, breaks a contract after the advance notification efficiency, the expanded economic loss part does not give the compensation.Second The efficient breach system of Civil lawThe Civil law system various countries continuously standard defends'actual fulfills first'breaks a contract the responsibility way, now also in abundance has the revision. The France, the German contract law domain adjustment although cannot regard as to the efficient breach theory acceptance among, but breaks a contract the responsibility substitution way change in onto be objective actually adapts the economic analysis school of thought position, the idea which the efficiency breaks a contract also seeps. Looking from another angle, also explained the modern contract method development tendency is holds the efficiency to break a contract to.Part four Surmount the difficult of efficient breach system legislationDrafts in the contract method in our country process, the introduction of efficient breach system's necessity also has discussed by the experts, but finally encountered the denial. Mainly is because of following several barriers: first, the coordination of Principle of honest and credibility & Efficient breach; second, the confine of abuse of efficient breach; third, the calculation of damage of efficient breach.The study on economics of law is still not mature, but some field uses this method to study law problems. The purpose and requirement of market are using resource in high efficiency, the means of law is right method to arrange resource, so when law embodies the efficiency the maximizing will comes true. Law is not all-powerful, the matter has specialty, which make judge do on principle, at the same time we'll endow them free judgment. Our Contract Law does not stipulate the principle of efficiency, which leads the judge not to assess the motive of the parties by the method of economics, as the result that they get the performance measure, it cannot make sure the quality of contract and make the contradiction of justice and efficiency serious and make resource wasteful. Chinese scholars think the conditions of efficient breach can exist sometimes, the benefits of performance can be judged by the parties'mind, as for the substitute for it, in pace with the development of market economy and richness of commodity, this question will be settled. This point embodies in 110 item of Contract Law; among them there are some quantitative analysis on the cost and benefits of performance. Indeed, this theory has some limitations, but it has some superiority, which make the thought vast and accurate. We ought not to accept all the theory, but we can make use of the advanced idea and the principle of efficiency in it to perfect and develop the breach theory. Event though the theory is yet not mature enough, but along with the development of practice and study deep-going, the theory must be more replenish and perfect and become organic and open theory system.