The Research On Efficient Breach

In the theory of relief of contract breach, efficient breach has been a bone of contention. Since the theory has been proposed, lots of responses have been immediately generated in both theory and practice field, and as wide spreading in different countries and regions, it caused more controversy, such as, how to effectively allocate risks between the parties under efficient breach situation? The main type of contract can affect the efficiency of the risk of default application? How it affects the efficiency of the main contract breach of trust investment decisions? In the existing legal system, whether or not the introduction of efficient systems would result in conflict (such as actual implement)? Shall we resolve related conflicts? How extent China should adapt efficient breach of contract? Should be efficient system established directly through legislation or judicial practice associates with relevant factors? Or even just a guiding philosophy of justice? For the interpretation and response to these issues and clarify the efficiency of the system default logic, this paper follows the questions, analyze problems and solve the problem of logical structure, follow the path of law and economics analysis, by logical deduction, the efficiency of non-compliance with the theoretical model to explain the internal logic of the system, combined with China’s breach of contract responsibility system, raised the efficiency of our reasonable reference method and with the default path. Specifically, this paper is organized as follows:The first chapter focuses on the efficient breach theory and system logic. The main contents include the theoretical basis of the efficient breach, breach of reasonable efficiency and effectiveness of the internal system of default logic and the development of theoretical arguments to respond to other issues. First, the article defines the efficient breach of contract:breach of contract is a contract that the efficiency of the party in breach of one’s own benefits will exceed the expected benefits and performance of the other party and (or losses arising from breach of contract is less than one’s own or third-parties to bring performance and the loss of), so that the defaulting party is limited to the compensation of each other after the expected return is still the event of default than non-residual, the default is a rational choice. We can see from the above concept, the efficiency is the default behavior of both parties benefit, parties to the contract of rational choice. Second, the article sort out the theoretical basis and the efficiency of breach of contract development process in the United States, meanwhile, it notices that in the main civil law countries (France, Germany) to adjust the field of contract law, although the efficiency cannot be regarded as breach of contract theory to accept, but an alternative to breach of contract. The objective is to adapt to changes in the efficiency theory of breach of contract claim, the concept of efficient breach of contract began to penetrate them. From another perspective, also shows the trend of modern contract law is converging, and in respect of the contract must maintain the efficiency of the civil law is to accommodate the spiritual core of the theory of breach of contract. Again, the paper proposes the remedy of damages, if the payment of damages in breach of contract after there is a surplus, while the losses from breach of contract the injured party, but also improves social welfare, then this act in accordance with the principle of Pareto efficiency, is the efficiency of breach of contract. Therefore, the benefits of default is outperforms the actual implement, the law not only should not prevent the parties who breach of contract, but also encourage this behavior. Finally, this part of the theory of efficient breach of contract disputes to sort out both at the same time respond to these questions, pointing out that the system of the theory of efficient breach although there is some reasonable doubt, but this did not fundamentally overturn the system, which can be reasonably institutional arrangements to avoid these problems.Theoretical model analysis of Chapter II, risk-sharing and trust investment from two dimensions, demonstrates that the efficient breach of contract under certain conditions can motivate behavior to perform Pareto-optimal. First, when risk-sharing contract to become the only target, and the uncertainty of future performance from a third party, if the product cannot be resold to a third party buyer, the buyer is risk averse and the seller is risk neutral This risk portfolio, the efficiency can be achieved optimal risk-sharing breach of contract; and if the product can be sold to a third party buyer, the seller when the risk portfolio is risk averse and the buyer is risk neutral, the breach of contract can achieve the most efficient superior risk-sharing. Second, the efficiency of breach of contract to make the performance-the party in breach of contract decisions to make other decisions will take into account the losses caused by the party making the choice to obtain relief for breach of trust investment trust often higher than the Pareto-optimal investment level. The reason is that the efficiency of breach of contract damages in the case of the trust to ensure the trust of investors access to investment income. Finally, although in general, the efficiency of breach of contract damages in the case better than actual performance. But if we consider the risk-sharing and trust investment, and the background of the contract is independent, there is no way to remedy a breach of contract is Pareto optimal. In other words, there is no way to remedy a breach of contract is the perfect alternative to complete the contract.Chapter Ⅲ analyzes the efficiency of our contract, breach of contract theory, the legislative reference value, issue the following several aspects:First, the efficiency theory of contract, breach of contract and the traditional relations between the comments:First, the efficiency of breach of contract is counter to the traditional theory of compliance away, because the traditional theory of breach of contract, breach of contract, although not all are negative comments, but the negative evaluation is the mainstream, and the efficiency of breach of contract in certain special circumstances to encourage breach of contract. Second, the efficiency is a breach of contract theory to explain because, although the common law is created and established by the judge, the judge in the legal development of trend-play functionality, but the efficiency of breach of contract theory is drawn from the jurists, is the interpretation of the contract legislation, attributable to explain the theory of categories. Finally, the efficiency theory of contract, breach of contract is a supplement to strengthen the traditional, while the theory is the challenge of compliance, because the traditional contract theory are that the contract as "lock law" generally should be strictly fulfilled, and the efficiency of breach of contract is uncharacteristically, that in order to achieve resource the optimal allocation, the principle of giving priority to efficiency should be taken to recognize the breach of the relative legitimacy. Second, the efficiency of breach of contract with China’s "Contract Law" in relationship to the principle of good faith conduct a study. That although the efficiency principle of good faith breach of contract and abide by our credit, does not match the requirements of commitments, but on the other hand, it is our default relief system provides a means of economic analysis, has its own theory of value and practical reference. Although we can deny the efficiency of default from the moral up, but the law is not just simply a problem of moral judgments. Therefore, rather than arbitrary denial, it is better to choose the abandoned, the efficiency of economic and technical analysis as a default method, by way of breach of contract and the intensity of accountability provisions to address these issues outside of moral value judgments. Third, the efficiency of non-compliance in the use of our legal practice and legislative reference. First, cases and materials on the actual research to prove that in the current concept, the efficiency of breach of contract breach in our country is still very limited in application, and still continue to fulfill our theorists and practitioners of the persistence of basic attitude. Second, the efficiency of our legislation into the feasibility and scope of the theory of breach of contract analysis, that the efficiency of breach of contract in line with China’s economic development and judicial practice. Finally, the combined efficiency of breach of contract theory, from philosophy and operational level, made in China "Contract Law" breach of contract breach of contract system should improve the efficiency of the basic path and way.Finally, the conclusion part, for improving China’s breach of contract theory, made some think and proposal.