A Study On Repudiation In The System Of Non-Performance

The theory of repudiation stems from the systematic division of non-performance put forward by Germany. As to the problem whether repudiation could be deeded as an independent pattern of non-performance, theoretic controversy continuously exists. BGB refuses to have repudiation included,only admitting it in case law. This thesis begins with the constitution of the German system of non-performance and analyzes the reason for the conformation of the state of repudiation from the aspects of logic and value. Based on the foregoing analysis, this thesis ultimately renders a value judgment on the system of non-performance constructed by the Chinese Contract Law which is involved in a prolonged controversy.This thesis demonstrates through the sequence of ideas as follows:In the introduction part, problem is put forward by a concise description of the co-existence of repudiation and anticipatory breach stipulated in the Chinese Contract Law.Chapter one lays repudiation in the system of non-performance. Firstly the method of constituting the system of non-performance through the thinking which comes from factors to effects by BGB is illustrated. Secondly the dichotomy and trichotomy of non-performance is discussed to illustrate the state of repudiation.Through value judgment, chapter two seeks for the reason for the matter that repudiation is denied to get involved in the BGB and abstract repudiation into the problem of creditor protection before the debtor's performance. Thus, conclusion is reached though the analysis of core benefit protected by obligation law: repudiation based on trust benefit is inconsistent with the logic of existing system. Then, conclusion is reached though the analysis from the aspect of specific performance based on ?expected benefit: conflict exists between repudiation and the principle of specific performance. In a system in which specific performance prevails, repudiation is in a marginal state. However, value judgment is influenced by the value transition. In a brand-new background, legislators intent to coordinate the relationship between expected benefit and trust benefit. The principle of specific performance compromises to the principle of substituting performance. The German obligation law also reformed in that situation. Although the objective is to cover the flaw of the system, a deep reason exists in the shift of standpoint. Thus repudiation could be involved in the new system.Based on the foregoing analysis of value judgment, Chapter three advances the analysis on the system design of non-performance. Through the inner part of the system, analyzes the adjustment of binary rights system. Through the outer part of the system,analyzes the distinction and relationship between repudiation and anticipatory breach which is a similar system in Common Law through the aspects from logic to value and lays the ground work for the following analysis on the legislation of the Chinese Contract Law.According to the precedent thinking and conclusion, chapter four comes back to the Chinese Contract Law, analyzes the co-existence of repudiation and anticipatory breach and accomplishes the comprehensive judgment.