A Comparative Research On Remedies For Breach Of Contract

Remedies for breach of contract is the core of the contract law system.No Remedy means no right.The remedies is an important measure to ensure the performance of the contract,a vital means to compensate for the loss of the parties and punishments of breach of contract,which has a significant position in the legal system of the contract.In the perspective of legislation and judicial practice and relevant international legislation,remedies for breach of contract are implemented in different ways all over the world.And damages,specific performance and discharged by breach are universally recognized three ways of remedies for breach of contract,which are also most important and suitable ones.Various remedies not only can be used separately to but also can complement each other and act as an organic unity.So we need to study and research the remedies not only one by one or case by case but also as a unity from the point of view of the system.Therefore to analyze the status and function of each specific remedy in the whole,which can help to better safeguard the legitimate rights and interests of the parties and play a better role of each remedy for breach of contract.In different legal systems and even different countries,the status and the role,as well as the component,of each specific remedy in the whole remedies system are different from each other.Damages,the most important and most commonly used remedy in the Anglo American legal system,also plays a similar role in the civil law system.For example,facts of damage and causality are applicable conditions for damages,the scope and calculation of damages is the most difficult part,the legal limit rules of damages are mainly the foreseeable rule,mitigation,contributory negligene,Break-Even of Profit and Loss,mental damage compensation.In addition,penalty is a special kind of remedy for damages.However,the status of specific performance is much different in two legal systems.In the civil law system,specific performance exists as an important or even the primary remedy for breach of contract,while only as an equitable remedy in the Anglo American law system,a secondary and complementary remedy.The gap has being narrowed under the background of the fusion of two law systems.The theory of efficient breach has its reasonable connotation to be used to carry out economic analysis on the specific performance.The applicable conditions of the specific performance contain positive and restrictive ones,which have different application situation in different countries legal system.In the perspective of comparative law,discharged by breach is also a major remedy for breach,and its applicable conditions include fundamental breach of contract and extra grace period.The events of default is the premise of enforcement of right of discharged by breach,which should be exercised in time and fulfill the statutory procedure.Breach of contract does not have retroactive effect in principle but only take effect in the future.The current remedy system for breach of contract in China is quite characteristic and has established the diversification of remedies,which also embodies the integration and convergence of the common law and civil law.Meanwhile,the incompleteness,incoordination,accurate positioning and operability of remedies system need to be strengthened.Based on the comparative study and the practice of China's legislation,we can draw lessons from the advanced legislation provisions,precedents and research theories of the other countries or regions,so as to improve and perfect our remedy system for breach of contract from the macro and micro levels.From a macro point of view,remedy system for breach of contract in China should be improved in the following aspects,namely: continually treating the legal assimilation as an important factor for building remedies system,handling the remedies as a complete system,expliciting remedies system in the special section of future Civil Code,establishing remedy for breach based on economic analysis,and building the coordinate,practical and diverse remedies system.Specifically,the suggestions to consummate damages are to ensure the priority of the damages,refine applicable conditions for damages,define the calculation of damages,improve the limit factors in damages and establish the system of moral damages.The improvement of specific performance should reposition the systems and regulations of specific performance,further clarify and refine the positive and restrictive conditions of specific performance system,make special provisions in view of the special contract,and perfect the system of specific performance with reference to the efficient breach theory.And the proposals for perfecting discharge by breach are as follows,separating the discharge by breach as a way of remedies from contract termination system,establishing the system of breach of contract in the reason of fundamental breach of contract,clearing the legal effect of discharge by breach and improving the operability of the system.In addition,we should add bans on remedies of breach of China.