On Performance Of The Contract The Debtor's Right To Cure The Obstacle System

The terminology of"the debtor's right to cure", which comes from some juristic documents, such as CISG, PICC, PECL and UCC, means that on the occasion of irregularities of performance, namely in the situation of non-performance or violation of the obligation, the debtor can re-tender the performance under certain condition and the creditor cannot refuse or oppose it. Although the debtor's right to cure is an important remedy of the irregularities of performance system, it does not be incorporated into our law theory. However, systemic researches about it have not been carried out in our existing law theory. In light of the case, the thesis adopts the functionalism methodology of comparative law to analyze, practice and constitute this theory of the debtor's right to cure, so as to carry out its in-depth research in this field.It is determined by the value of the debtor's right to cure whether it can be called a legal system, be affirmed its validity and rationality, or perform its function. The concept of"cooperation"which is affirmed in the modern society is the value basis of the debtor's right to cure. The application of the debtor's right to cure between the contractual parties can attain mutual benefits, which is the intention and outcome of the cooperation. Despite the fact that the debtor's right to cure consists of a series of extremely concrete regulations, it has the value of liberty, justice, security and efficiency to display the intention of contract law.The irregularities of performance system includes the cases and force adeffects of the irregularities of performance. The institution linkage between the debtor's right to cure and the irregularities of performance system can be reviewed from the applicable precondition and consequences of the debtor's right to cure. This applicable precondition is correlated to the cases of the irregularities of performance. In other words, the non-performance or violation of the obligation can be applied as its standard. Although the force adeffects between the debtor's right to cure and the irregularities of performance may have some conflicts, a series of regulations can be constructed to harmonize their relationship.The regulations constitution of the debtor's right to cure achieves the dynamic balance in protecting the legitimate interests of the debtor and the creditor. Its substantive regulations require that not only the debtor's cure at his own expense is appropriate, but also the creditor has no legitimate interest in refusing it. In addition, in order to create a fair negotiation environment between the contractual parties, the systematic combination of this program the debtor's notice of cure and the creditor's reply is made in the procedure regulations.As for the lack of the debtor's right to cure in China, the value basis and institution linkage of the debtor's right to cure prove the necessity, possibility and feasibility of introducing the debtor's right to cure into our law theory. The particular regulations constitution of the debtor's right to cure demands overall evaluation of practical situations to construct the autochthonous regulations.