| As a legal worker in Taiwan,â… am so lucky to study civil & commercial law and do research work in Southwest University of Political Science and Law (SWUPL), a famous law school in Mainland China. During this period,â… witness a rapid economic development in Mainland China and experience a deep and sincere compatriot affection that derived from the same culture and race in cross-straits. Meanwhile,â… also keenly, realize the strongly aspirations to develop cross-straits trade and culture communion. To develop cross-straits trade and culture communion, traveling and visiting of relatives and friends as well, contracting action is absolutely necessary. For this reason,â… write this thesis and expect to provide a guide to compatriots on both sides of the Straits to resolve dispute of laws on the background of increasing trade development, economic communion, traveling and visiting of relatives and friends, by means of comparing the similarities and differences of liabilities for breach of contracts between two sides of the Straits, so as to bring benefit to all Chinese people.Objects of the comparative study include relative provisions in Civil Code (Taiwan), General Principle of Civil Law, Contract Law (Mainland), judicial interpretations, judicial cases and academic theories, occasionally involve instructions of relative systems and theories in typical countries belong to civil law system and Anglo-American law system to broaden views.This thesis composes preamble, body and conclusion. Except preamble, there are ten chapters. Chapter One to Six is basic part, which focuses on studying establishment and effectiveness of contract, historical process of liabilities for breach of contract, general theories of liabilities for breach of contract, imputation principle of liabilities for breach of contract, formation of breach of contract, exempt provisions. Chapter Seven to Nine concentrate on comparative study on Cross-Straits conformation of liabilities for breach of contracts. Chapter Ten is a brief conclusion.The main substances in body are as follows:In Chapter One, I draw a conclusion that the so called contract in Mainland Contract Law and Taiwan civil law both refer to obligatory contract, through comparing establishment of conditions and general principles of contract. The establishment of contract follows out principles of equality, freedom, justice, faith and public interests. As to the effectiveness of contract, the obligor should subject to performance obligation, subordinated obligation, pre-contract obligation, post-contract obligation and unreal joint obligation under an established contract. The performance of contract is both centralized reflection of effectiveness of contract and a main reason of termination of contract. Moreover, perspicuity of legal requirements for performance of contract is a precondition to determine breach of contract and furthermore to determine liabilities for breach of contract. So principles and specific requirements of performance of contract must be studied carefully before liabilities for breach of contract. Both sides of the Straits accept that performance of contract should be subject to principles such as faith, complete performance (suitable performance, right performance) and changed circumstances. In addition, contract law in Mainland also follows out principle of specific performance and cooperative performance.Chapter Two reviews historical process of the institution of liabilities for breach of contract. Ancient Roman Law followed out debt slave system, permitted debtees imprisoned the debtors who could not repay a debt and even allowed debtees kill them. Codex Justinianus abolished debt slave and established compensation institution of damages for breach of contract. Later countries ruled by law succeeded the indemnity institution of damages for breach of contract in Roman law, developed and improved this institution. Due to the difference of traditions and views among each country, there are different institutions and theories. For example, France Civil Code applied the principle of limited indemnity, Germany Civil Code applied the principle of complete indemnity. England Common law divided breach of contract into anticipatory breach of contract and actual breach of contract, which are different in requirements and remedies. Moreover, England equity offers two other remedies. One is specific performance (Court of Equity issued an order to force one contracting part to performance obligations of contract, or this one will be constituted contempt of court and sentenced to confinement and criminal fine). Another is injunction. Liabilities for breach of contract in American law include indemnity of damages for breach of contract, actual performance and injunction. It's also worth to note, American judicial case acknowledged that contracting part may claim a spirit indemnity due to breach of contract in some cases. All of these were made deeply impact to contract laws of modern countries.Chapter Three introduces general theories of liabilities for breach of contract. Based on definition, function, constitutive requirement, applied scope, legal effectiveness, this chapter makes a comparative analysis on debt and liability, liability for breach of contract and liability for nonperformance of an obligation, liability for breach of contract and liability for return unjust enrichment, liability for breach of contract and liability for tort. It also analyses different theories of liabilities concurrence, andâ… put forward my opinions in combination with practice in Mainland and Taiwan.Chapter Four inquires into imputation principles of liabilities for breach of contract.â… arrive at the conclusion, through analysis and discussion on lawmaking and academic theory in Mainland and Taiwan, Mainland contract law applies to district liability and Taiwan civil law applies to fault liability. But in judicatory practice, with the aid of burden of proof, there is no virtually difference.Chapter Five deals with formation of breach of contract and effectiveness of breach of contract. It mainly discusses on impossible performance, delay performance, incomplete performance and reject performance, as well as liability for each breach of contract. There are also a detailed comparative analysis on incomplete performance in Taiwan civil law and non-suitable performance in Mainland contract law.Chapter Six focuses on exempt cause for liability. It discusses on definition of exempt course, difference between exempt course and defense course. It also analyzes force majeure, fixed exempt clause, fault of obligee and effectiveness of changed circumstance. It was stipulated force majeure especially in Mainland General Principle of Civil Law and Contract Law. Force majeure includes natural disasters, statutes changed, riots or other major upheaval. Based on fault liability, under Mainland contract law, accident is an exempt cause for liability. But it isn't so under district liability. According to Mainland contract law, not against compulsive provisions, in law is the precondition for fixed exempt clause comes into effect, and it is void to exempt liabilities for bodily injury and property damage intentionally or through negligence. It also stipulates not to exempt contracting part's major rights. Effectiveness of changed circumstance includes primary effectiveness and secondary effectiveness. Primary effectiveness means that obligee might request court to change contracting performance or add/reduce contents of contracting performance. Secondary effectiveness refers to if remedy means of change contract are not enough to compensate loss caused by obvious unjust of contract, and/or it is impossible to continue performance, therefore obligee might terminate contract or cancel contract to balance interests between two contracting parts.Chapter Seven to Nine introduces conformation of liabilities for breach of contracts, and makes a comparative study on actual performance, termination of contract, liquidated damages, earnest money and indemnity of damages for breach of contract, as well as institute requirement, applied scope and mutuality of all the five conformations.The last Chapter is to sum up result of the comparative study, and reach conclusion as the following:1. Closed following global trends, each has it's own advantagesComparing relative provisions in Mainland contract law and Taiwan civil law, each has it's own advantages, otherwise there are a lot of same provisions. For example, both sides of the Straits have amended its provisions on fixed contract (adhesion contract) and liability for culpa in contrahendo to follow global trends. It's a pity that the part of obligation in Taiwan civil law does not regulate electronic contract and anticipatory breach of contract. It is out of modern society more or less. Furthermore, provision of anticipatory breach of contract does not exist in Taiwan civil law. As to imputation principle of liabilities for breach of contract, the major difference is Mainland contract law has taken the lead in adopting no-fault liability (strict liability). And Taiwan civil law still keeps to fault liability of civil law system. As to liabilities concurrence for breach of contract and tort, Taiwan is resort to academic theories and judicatory practice to balance the lack of statutes. On the contrary, Mainland China has stipulated it by statutes.2. Specific institutionIn comparison with specific institutions of liabilities for breach of law, it is worth to note as the following:1) Both sides of the Straits have stipulated liability for breach of contract, but confessing freely, liability for non-performance of obligations in Taiwan civil law isn't a specific institution for contract, it applies to all obligation relationships in general. So the same definition about liability for breach of contract with the same meanings has different expression in Cross-Straits. It has to be clear for this during study and application.2) For non-performance of obligations, Taiwan civil law applies to fault liability. On the contrary, Mainland contract law applies to non-fault liability. On a justice basis, Taiwan scholars and judicatory practice all accept that obligee only needs to prove the fact of non-performance for a claim of non-performance. If obligor pleads that non-performance cannot impute to him/her, then it applies to inversion of liability of evidence. It is similar to liability of fault presumption. We can see it will reach a same result in practice with liability of non-fault applied by Mainland contract law. Although there is a major difference in imputation principle of liabilities for breach of contract between two sides, they are equally matched. 3) Exemption cause for liability. Taiwan civil law applies to fault liability. Liability for non-performance of obligation is based on imputative cause of obligor. Therefore, unless obligor doesn't performance obligations intentionally or through negligence, all other facts cannot cause liabilities to obligor. This is why Taiwan doesn't stipulate exemption cause by statutes. But if we act in strict accordance with the principle, it will be harmful to protect right of obligee. So there are exemption provisions to amend the principle in Taiwan civil law. Mainland contract law applies to non-fault liability, it needs stipulate exemption cause of obligor by statues. For example, The Contract Law Article 117 stipulates that a party who is unable to perform a contract due to force majeure is exempted from liability in part or in whole in light of the impact of the event of force majeure, except otherwise provided by law. Where an event of force majeure occurred after the party's delay in performance, it is not exempted from liability. This one happens to hold the same view with relative provisions in Taiwan civil law: Obligor's liabilities increase duo to delay to perform obligation, and the obligor is unable to exempt from liability in light of the impact of the event of force majeure.4) Specific performance is one liability for breach of contract in Mainland contract law. But Taiwan civil law doesn't introduce specific performance. Even though, as long as performance is possible, obligor in Taiwan fails to perform obligations under contract who is liable to perform obligations under contract, no matter specific performance is introduced by statutes as one liability for breach of contract or not. For example a borrower delays to repay loan under a contract for loan of money, lender may require borrower to follow out the contract besides the payment of the liquidated damages. So we can see the actual operation effectiveness of liability for breach of contract has no difference between Mainland and Taiwan, though there are difference attitude to specific performance.5) Mainland contract law emphasizes on negotiation and cooperation between the parties. Contract law Article 60 and 61 stipulate the parties should resolve disputes on contract settlement and content through negotiation and cooperation. Even if one part fails to perform obligation under contract, it also emphasizes on negotiation and cooperation. For an instance, The contract law Article 118 stipulates: If a party is unable to perform a contract due to force majeure, it shall timely notify the other party so as to mitigate the loss that may be caused to the other party. And Article 119 stipulates: Where a party breached the contract, the other party shall take the appropriate measures to prevent further loss. All these provisions effectively prevent from gaining profit by waiting for other party breached the contract. The consequence that may not claim damages for further loss has put pressure on obligor to prevent further loss. This measure may mitigate breaching party's obligation, and give consideration on both two parties. Taiwan civil law Article 153 Item 2, Article 217 Item 1 and judicatory practice are equal to Mainland contract law Article 60, 61 and 119. But, contract law just one part of civil law in Taiwan, the above mentioned articles do not edit into the part of contract and specific apply to contract, whereas these articles are not only applied to liability for tort but also applied to liability for breach of contract in judicatory practice.6) Mainland contract law affirms taking remedial measures as one liability for breach of contract. According to lawmaking intention, it is mainly applied to that performance does not meet the prescribed quality requirements. Taiwan civil law has no such provisions, whereas the amendment of Civil Law Article 227 (5/5/2000) has the same function with it.3. Legislation formAs to legislative forms, Mainland contract law has an independent statute highlighted the importance and necessity of contract in commercial society, and is easy for application. Taiwan civil law has a specific chapter of contract. Besides liability of liquidated damages and earnest money, it also stipulates termination of contract, cancellation of contract, defenses right of simultaneous performance and security under bilateral contract, third performance contract, third beneficiary contract, etc. But failure to perform obligation (including breach of contract) as well as its forms and constitution of liability are included in the chapter of effectiveness of obligation as common provisions. In other words, not only contract relationship but also obligation relationship beyond contract, such as unjust enrichment, negotiorum gestor and so on, are subject to relative provisions on forms of failure to perform obligation and constitution of liability. Besides contract, there are also unjust enrichment, tort, negotiorum gestor and others would cause obligations. Whereas forms and liabilities provisions of failure to perform obligation are general abstract rules so that each obligation relationships is subject to these rules. This mode is concision and simple, and may cover various situations with common provisions, whereas Mainland contract law is dear, definite and easy to use.Although the lawmaking of contract on both sides of the Straits has its own advantages and different contents, both sides have taken liability for breach of contract as a means to guarantee the performance of contract. Although Taiwan civil law doesn't employ some specific provisions about contract, the discrepancy between two sides have minimized through legislative interpretation and judicatory practice. As stated above, imputation principle of liabilities is a major difference between Mainland and Taiwan, but with the aid of inversion of proof liability, there is no virtually difference to strict liability.In general, Mainland contract law is clear, definite and pellucid but no concision and lean. It is good for application and promotion. On the contrary, Taiwan civil law, no matter involving in contract or not, is hard to understand, and has the deficiency of too concision and lean. So Mainland contract law is better than Taiwan civil law in the basis of application. In essence, Mainland contract law does not stubbornly stick on an opposite mode of claim and to be claimed. Whereas it emphasizes on negotiation, cooperation, reflecting human nature of mutual aid, and also reflecting lawmaking principle of equity, justice for contract law. Taiwan may use it for reference.
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