Research On Risk-bearing System Of Sales Contract

As transaction is the foundation of the market economy, the legislation of sales contract is the legal model of two parties' right, and plays an important part in adjusting the market economy. Risk-bearing in sale contracts means that, which party of the contract should bear the loss or damage of the items that can not due to any party. As it is a important part of contract law, all country and area pays great intention on it and designed the different risk-bearing rule and the system as well as International treaties and international conventions recognize the risk-bearing system as one of the question that should be most seriously treated.This article applies theory to reality, takes the world main countries or locals as well as the related international joint pledge corresponding stipulation as a foundation, unifies our country's law of contract about the risk-bearing, attempts to promulgate a certain general character and the rule, and puts forward the trifle proposal to our country system consummation, expects to offer reference to the legislation of our code of civil.The article begins with the study of the concept of the particular meaning of risk in the risk-bearing system, and the nature, the characteristics and the composition of risk is pretium risk, which means the loss or damage of the items that can not due to any party. It concerns about whether other party of the contract is obligated to give the pretium when the risk happens. The author acclaims that the scope of risk includes natural force, accidentalness and natural attributes of the goods. Though some studiers hold that the fault of third party should be separately discussed, the author thinks the fault of third party should be accidentalness.On the base of conception of risk-bearing system, the second part of the article discusses the relationship between risk-bearing system and damage caused by breach of contract, as well as loss of contract and other system. This part also tries to define the value of the risk-bearing system. The justice, the safety and the efficiency is the vale the risk-bearing system to pursue. Then the principle of the system is discussed. The author generalizes three types of legislative modes, namely, the principle of founding of contract, the principle of ownership and the principle of delivery, the author delves into the legal basis that is behind the legal system, and gives an in-depth anatomy on advantages and disadvantages of each mode. At last it is hold that the principle of delivery is an inevitable choice.The third part is based on the theoretical analyses of section one and two. It discusses the risk-bearing system of our country. According with tendency of the world, the delivery principle is chosen. Then it studies the exception of principle, including risk-bearing in contracts of floating cargo, risk-bearing in contracts referring shipping and some risk-bearing rule when breaching of contract happens.In the last part of the article, the author tries to give some advices. The theory of the risk-bearing must be amended. We also need to specify risk-bearing rule in some special contract like auction contract. The author still tries to make the rule more perfect when the breach of contract happens.