Research On Impossibility Of Performance

2002 "De Treasury Law Modernization Act," changes the status of Impossibility of performance in the system to perform obstacle of the "German Civil Code". The Act substituted the obligation nonfulfilment with the description of "breach of contracts" through approaching from the legal effect of provisions in violation of obligations. This change used the same legal techniques enactment of legislation after following the 1980, "UN uniform sales law," the 1994 "Principles of International Commercial Contracts" (the current version in 2004) and 1998's "Principles of European Contract Law". The lessons from Contract Law in the world have significant influence to the modernization of the law on China's accession to WTO, as well as for of effective docking with the international legislation. This article departs from the basic theory of Impossibility of performance, and then introduces its historical evolution. Subsequently in the context of comparative law, this article analyzes its influence to validity of contract, in order to explore the influence of ideas in the different legal under people's attitudes change. Finally, this article describes some lessons which our legislation can draw lessons from the new German law of obligations. Besides the introduction, this paper is divided into three parts:The first part is about the basic research of theory of Impossibility of performance. This section mainly discusses the concept of Impossibility of performance, theoretical categories, and its theoretical evolution. Germany Civil Code system which is structured by prominent legal abstraction technique, changes the forms of "breach of contract" through adoption of legislation. And this would directly affect theoretical categories of Impossibility of performance. And Jieer Su rules (Impossibility of performance lead to a contract voidance ab origin) also have effect on the structure of System of obligation obstacles. Our legislation can draw lessons from Germany's new debt law. The adoption of legal effect-technical is able to get rid of the deficiencies cited provisions of "breach a contract". With this higher definition our legislation can build a more complete and scientific system of obligation obstacles.The second part is validity of the contract under the condition impossibility. Impossibility of performance affects the validity and the impact of contractual obligations of the parties. When this condition arises in the perspective of judicial practice, the law should make valuable choices. Thereby it provides us a new thought to impossibility of performance that we can use relief ways such as action for specific performance,compensate for loss, instead of contract invalidation and default. Alternative payment of compensation is a new attempt to introduce autonomy of private law into the level of legal relief. It will maximize stimulate the initiative of both parties in the contract dispute, and relief as much as possible the loss of social resources.The third part is mainly about lessons learned from legislations in other countries. Now we have not enact civil code in our legislation. The provisions on impossibility of performance are scattered in a number of single civil legal statutes. Then, through drawing lessons from the legislative experience of foreign countries and model code, our legislation should not only reflect in the "legal basis", but also need to notice that precise of the Civil Code system itself, the system in theory. This section emphasis on technical issues through introduces of legal technology in "German Civil Code". As the legal norms of private law, Civil law should aim to explore a way which can not only be used between civil subjects, but also between human and nature.On the one hand, our legislation should break ideological restraints of rules of Jieer Su, reduce the legal denial of the validity of the contract only if in the premise of public interest. On the other hand, the law should provide a coordinated pattern of consultations which benefit to civil objects in disputes, thereby, include civil activities within the legal system. When fulfilment of contract faces adverse conditions, the introduction of alternative compensation system can cover the shortage, and offer sound strategy. At last, the author point out some own views on it.