China Contract Law, The Actual Performance Of The Analysis And Reconstruction Of The System

Specific performance means the that when the contract-breaker doesn't perform the contractual obligation,the other party has right to ask for performance or to seek the enforcement from the judge. Various attitudes and practices were adopt in the system of civil law and the system of common law. At a word,in the frame of methods of bearing contractual liability, the system of civil law makes specific performance doctrine,damages exception. On the contrary, the system of common law makes it conversely. But from the traditional theory of specific performance to modernistic practice,the two law systems have a trend of mutual syncretizing. In our contract law,the position of specific performance is fluctuant. The principle of specific performance played a important role in the era of planned economy. It can be attributed to the economic system. In 1999 Contract Law the continue performance method was stipulated for the first time. But after it ,the method hasn't function as the foremost one of remedy in the legal process,which was suspected by the lawmaker. Actually,only a few percents were possessed by the cases of with judgement of enforced specific performance. It's undoubtedly a great pity that the construtive role of the method wasn't bring into play. We should check it out and think it over.If we want to learn the real meaning and scope of specific performance,we must have the ability to analyze the relationships between the method and principle of substantial performance,between the method and the method on labor law,between the method and the method on bankruptcy law. If we want to grasp the deeply significance of specific performance,what we must do is that knowing the embeded value orientation and recognizing the ties of the method and civil voluntariness, the ties of the method and contractual ethic, the ties of the method and efficient breach, the ties of the method and the judge's discretionary. The main content of specific performance system also includes the patterns of applicable requirements for the method and the affirmation to the obstacles. Author launchs discuss upon every form of suitable breachs and the formal demand. Moreover, author delivers a detailed project about the specific performance system of our contract law. In our brand bewsystem,we should establish civil voluntariness, contractual ethic, social fairness and justice as the gist of the system. Efficient breach should be withhold. Meanwhile, the judge's diecretionary should be moderately confined. The establishment and integrity of the system depends on the support of other systems within civil law and contract law demense. We should consistently fulfil the theory basis,such as contractual liability,right of claim,enforced process of court. Founding the system in our country,we should ascertain the system as an universal and unique method of relief,other than a symbolic claim which often unmet in practice. In the disserting of every form of breach,whether the method is suitable should be a part in the handling course. Legislation should stipulate the circunstances of withholding application. More detailed circumstances ought to be prescribed as a whole thing,instead of "circumstances in which is hard to perform legally or practically" in law items. At last,we should steat for the identity restriction of claimant and the "reasonable time limit".The essay also includes: systemic argument on the relationships between specific performance system and the values, advance of notion on "the elements withholding the method applicative", and summary of internal obstacles which withhold the method applicative.