Long-term Contract Research

Long-term contract originates from the economics,and then be focused by the jurists.The jurists have found the great heterogeneity between long-term contract and other contracts,for instance,long-term contract usually has a longer time of implementation,the objective environment and social relationship upon which a contract was concluded can change with the elapsed time in the performance of the contract,and as a result it is easy to cause that the contract terms become inappropriate or unable to deal with the unpredictable risks arising in the new environment.China's contract law is mainly based on the classical contract law theory and the neoclassical contract law theory,with the single contract as the main regulatory object.As a typical relational contract,the long-term contract has not received with much attention from the institutional level,which has caused various long-term contract disputes,and therefore the legal effect and social effect of relevant judgments is not ideal.As a result,the write makes a deeply analysis to the long-term contract from the perspective of relational contract theory in the full text,uses the historical,comparative,economic analysis,empirical and other research methods,systematically examines the characteristics of long-term contract from the perspectives of the theoretical origin of contract law,the concepts of relevant systems of various countries and transaction cost and multiple aspects,and carries out the construction of specific theoretical framework and system.In addition to the introduction,this paper is divided into two parts and conclusions.Among them,the part one of Basic theory of long-term contract includes chapters 1 to 2 and the part two of Regulation of long-term contract includes chapters 3 to 6,a total of 6 chapters,to carry on a more thorough discussion and research to the long-term contract,and so as to promote the improvement of our country contract law and the relevant legislation.The argumentation ways of this chapter are mainly reflected in: First,based on the development of the basic theory of contract law,the writer sorts out the basic management theory of long-term contract,and points out the predicament of China's long-term contract regulation;Second,from the interpretation,adjustment,rescission and efficiency breach of long-term contract,this paper concretely analyzes the demand of long-term contract theory on relevant contract rules and put forward corresponding solutions;Third,based on the study on the theory and regulation of long-term contract,this paper puts forward some suggestions on the current lawand future legislation of China.Chapter one,The concept of long-term contract.The concept of long-term contract is characterized by the ambiguity,one of reasons is that the academic world has not yet conclusion on it;another is that many scholars believe it is not mostly important for the accuracy to definition of long-term contract.In this paper,the writer thinks that the long-term contract refers to the contract with a long period of implementation and investment in specific assets.However,the definition of the concept of long-term contract is only aspect,and more importance is the instrumental meaning of the concept of long-term contract,i.e.the long-term contract is viewed as a concept of analytical category of contract theory,and is regarded as scaffolding to reflect on the traditional contract theory and relevant contract system.The characteristics of long-term contract include such properties as long-term,incompleteness and asset specificity.In modern society,most of these long-term contracts are characterized of business-negotiation property.Long-term contract and continuance contract are different concepts in different levels.Although they have greater overlap,they should not be confused with each other.Chapter two,The governance basis of long-term contract.Long-term contracts usually have text omissions,which includes: when a contracting party or both parties can or may foresee a risk,or it may also be that the risk will occur in the long-term future,and therefore it doesn't need to make specific agreement,or the contract can't handle the risk well even if it has been agreed,or one party knows the omissions that significantly beneficial to itself,so it is not intentionally agreed in a long-term contract to avoid giving hint to the other party.Such omissions are called deliberate omissions.Due to long-term property of long-term contract and the limited reason of the contracting parties,it is impossible to predict the risks arising from the performance of some contracts at all in the conclusion of long-term contract,so no agreements are reached in the contract.This kind of omission is called unintentional omission.In reality,the omissions in the long-term contracts also give rise to so-called Hold up problems,which is also exacerbated by asset specificity.In the comparison of laws,it has many inadequacies and even failure in the governance methods of long-term contract omissions,for instance,the Anglo-America law system is limited in its application to the interpretation of long-term contracts,the application scope of the change principle of circumstances in continental law system can't meet the requirements of long-term contracts,and the relevant rules are not complete,etc.In addition,the long-term contract regulation alsohas internal contradictions and related derivative problems,mainly including that the special handling way of contract dispute for a long time may lead to the confliction between the principle of fairness and the principle of strict adherence to contract,the court adjustments to long-term contract are in question,loose principle forms in opposition to restrictionism in right of renouncement,etc.The judicial predicament of long-term contract in China is mainly embodied in the heavy attention on the text but less-attention on the habits,in the ignoring the organic solidarity of long-term contract,in the non-consideration of investment in specific assets,and in the heavy attention to public judgment but neglecting of private-settlement and several aspects.Long-term contract and traditional single contract have heterogeneity.Their theoretical assumptions are also different,including that both contracting parties have limited rationality,speculative thinking and investment in specific assets,three aspects.The social basis of long-term contract governance manly comes from the refinement of social division of labor.In the society transformation from mechanical solidarity to organic solidarity,more and more strategic long-term contracts have emerged in large number,and the organizational function of contract has been enhanced.In the meantime,there is also a growing willingness to cooperate and maintain the people's contracts,which is fully reflected on the reduction in the number of one-shot deals and an extension of the trading term in the contract-concluding.In the social context,the interdependence of market entities,the balance of interests and the sustainability of cooperation all propose various requirements for the governance of long-term contracts.In the claims of legal principle,it requires the fairness,efficiency,flexibility and operability of the governance mechanism.Therefore,we should re-examine the classical contract law theory and the neoclassical contract law theory,and finally take the relational contract theory as the basic theory of the long-term contract governance mechanism.Chapter three,The interpretation and omission supplement of long-term contract.The interpretation and omission supplement of long-term contract should adhere to the principle of autonomy of the will.Specifically,it should take expressionism as the core and intentionality as the supplement,but this principle should be reasonably limited on the basis of particularity of long-term contracts.As a relational contract,long-term contract should adhere to the relationship principle in the process of interpretation and omission supplement.The fairness principle and efficiency principle are also necessarily taken in the consideration for the interpretation and omission supplement of long-term,and moreover fairness and efficiency have agreement points in the long-term contracts,and can take care of each other.In terms ofmethodology,the interpretation of long-term contract can be divided into narrow interpretation,supplementary interpretation and revised interpretation.Among them,the literal interpretation is the core of narrow interpretation;the supplementary interpretation may refer to the system of implied clauses in Anglo-American law system,and the revised interpretation must implement sociological interpretation,interest measurement interpretation and integrity interpretation.The interpretation and omission supplement of long-term contract is in compliance with basis including compulsory norms,contract terms,habits and other social factors,arbitrary norms and other,in which the compulsory norms should be given priority to apply,the indirect application of contract terms are second,and then habits and consideration of other social factors are subsequent,and finally arbitrary norms is used to interpret and supplement long-term contract.Chapter four,The adjustment of long-term contract.The adjustment of long-term contract is the core of long-term contract regulation.The regulation of long-term contract in comparative law has experienced the change from change resolution to cooperation maintenance.In the specific measurements,the Anglo-American legal system gradually recognizes the adjustment obligation in the long-term contract and gives the court the right to adjust the long-term contract,and the continental law system introduces the obligation of renegotiation into the principle of change of circumstances and stipulates the reference clauses for the nonexistent factors.The adjustment of the two legal systems to the long-term contract shows an integration trend.Long-term contract adjustment is composed of personal adjustment and court adjustment.In terms of personal adjustment,his chapter demonstrates legitimacy of personal adjustment and its trigger conditions,and makes clear that the nature of adjustment obligation belongs to the collateral obligation.Meanwhile,its content includes the obligation to propose the contract adjustment,the obligation to response the contract adjustment and the obligation to adjust honestly and fairly.In the aspect of court adjustment,this chapter refutes one by one the main arguments against the court's adjustment,deeply demonstrates the legitimacy of court adjustment and the considerations in the court adjustment.Meantime,the writer discusses the specific method,procedure and effectiveness of court adjustment.Besides,this chapter also demonstrates the importance of the principle of integrity in court adjustment.Chapter five,The termination of long-term contract.Due to the particularity of long-term contract,the rules and concepts of termination system of long-term contract areaffected to some content.Considering the long-term property,incompleteness,asset specificity and other characteristics of long-term contract,the termination of long-term contract should be more restricted than other contracts,that is,the termination system of long-term contract should be amended with Restrictionism.In terms of restriction of termination with law causes,Force majeure termination of long-term contract should be limited in the circumstance in which it is clear that the purpose of the contract cannot be realized due to force majeure.The termination of anticipatory breach of contract,and interpellation termination in delaying performance should be limited to the conditions in which there is no valid reason for the anticipated breach of contract or delay in performance of one party.Other statutory causes for termination should also be limited to the fact that there is no unexpected abnormal risk in the performance of the contract.In terms of limitation of termination of agreed causes,it should introduce the system of unfair clauses,and can learn from the general principles of German law and EU law plus the unfair factor examination system of blacklistand grey list.The termination right of long-term contract can be executed by notice,but in principle it should be made in writing and should not be allowed to be issued by the form of notice.In addition,the court should adopt the view of substantial understanding on the issue of exercising the rights of termination and objection in the trial,and meantime acknowledge that the termination right person also has a right of objection.The right to terminate a long-term contract can also be exercised through litigation,but the notice of termination is not a precondition for litigation termination.The automatic termination of a long-term contract can be divided into the termination with time limit and the termination with condition,in which the termination with a starting date only should be supported by the court.In addition,this chapter,on the premise of distinguishing the long-term civil contract from the long-term commercial contract,advocates that the arbitrary termination of the long-term commercial contract should be subject to the special restrictions.Chapter six,The efficiency breach in the long-term contract.In terms of economics,the efficiency breach of long-term has been concerned all the time;furthermore,it is controversial in the field of law,especially in the continental law system.In this chapter,the writer further discusses the validity of efficiency breach in long-term contract based on the analysis of the proposition for and opposition to efficiency breach.The writer discusses the value basis of long-term contract application efficiency breach from three aspects of organic solidarity,cooperation-maintained willingness and altruism,and the existence of specific assetinvestment,discusses the normative basis of the long-term contract application efficiency breach from the aspects of future damage determination rules,and discusses the theoretical basis of the applicable efficiency breach in long-term contract from the perspective of the objection of deconstructing efficiency breach.Although the efficiency breach can be applicable to a long-term contract,it can only be applicable to a limited scope.Specifically speaking,the efficiency breach only applies to long-term commercial contracts,and must be harm-avoiding efficiency breach.However,the efficiency breach can't yet be proposed at all times.For this reason,this chapter also defines the time frame for the claim of efficiency breach.