Theory Of Incomplete Debt Performance

The theory of incomplete performance is an important and controversial traditional issueof the civil law theory. Only a few scholars in China mainland study this issue, and hardlyhave any consensus; But in Germany, Japan and Taiwan area of China where the research onthe civil law theory is further mature, the scholars do thorough analysis and specific research,though there are still some controversies. And their research achievements are worth ourreference, absorption and transformation in our civil law study, which becomes the basictheory conforming to our civil law developing needs of reality. This paper attempts to discussthe issue of incomplete performance by comparative analysis, the literature analysis and someother research methods.This paper is divided into five parts:The first part, by the analysis of the theory of debt incomplete performance in Germany,Japan and Taiwan area of China, the author makes a comprehensive compare of theiradvantages and disadvantages, arriving at conclusions of the concept of debt incompleteperformance, some theories used to study the issue, its practical significance.The second part, the author makes a exploration of the developing course of theincomplete performance theory in some countries and areas where the civil law theory isadvanced, purposing to discover the origin of the theory and its current developing situation.This part respectively introduces the development and current situation of the incompleteperformance theory in Germany, Japan, Taiwan area and mainland of China.The third part, according to different methods, the author makes a classification of theincomplete performance, which can help us further understand the purposes and functions ofthe incomplete performance theory. By the compare and analysis of the constitutiverequirements of the incomplete performance made by some scholars, the author concludes thedefinition of the incomplete performance with more extensive, scientific and accuratemeaning, which could help to more obviously differ it from some other breach conditions.This part is based on the theory of the relationship among the debt obligation group, inaddition to payment obligation, there are also collateral obligation and protection obligation.Thus for the constitution of incomplete performance, the author makes a definition differentfrom impossible payment, delay payment and some other traditional breach form. The fourth part, mainly around the legal effectiveness and relief way of the incompleteperformance and under the different conditions of incomplete performance, respectivelymakes discussion and analysis of the situation of whether can be corrected or not, thecompensation for damages, the relationship with infringement, and specific remedies ofdamage. Then the author concludes the remedy ways different from traditional breach formsby comparative analysis.The fifth part, especially elaborates the burden of proof rule which is the important rightremedy rule of debt incomplete performance in details. And the author also puts forward thepersonal opinion on how to distribute the burden of proof in the lawsuit that the behavior ofincomplete payment caused damage.