A Discussion About The Principle Of Frustration Of Purpose In China

Since the20th century, after repeatedly discussion between the scholars fromcontinental law system and common law system, the knowledge of the principle offrustration of purpose has been enough and the consensus of theory and applicationunder different legal system has been formed. In China, although the definition of theprinciple is scientific and clear in theory, its content and boundary is dim. It cannot bedenied that the study of frustration of purpose is still in the stage of theoreticalanalysis and lack of the support as social life and practical operation experience atpresent. So the judicial practice is enveloped in a cloud of mist and the people feel soconfused to this issue. In view of this, in-depth study about the issues concerning thelink of theory and application is necessary, and it will do a lot of help to thedevelopment of this legal institution.The historical change of the principle of frustration of purpose tell us that thecore of the research on the principle is not on the discussion of its origin, definition orconstitutive requirement, nor on clarifying the differences and relations among thesurrounding concepts, but on the grasp of the way that civil law principle of goodfaith and fairness achieve substantial justice in the field of contract law. Therefore, itis the way to achieve substantial justice that needs further exploration. Now days,although some scholars have preliminary realize it, but in the process to design the suitable way for frustration of purpose using, they have encounter problems that hardto avoid. In fact, the scholars haven’t really realized that the pursuit of principle offrustration of purpose is substantial logos. It is running in the opposite directionsagainst formal logos that the basic articles of civil law pursue. Laying the hope inusing strict logical concept or framework of civil law to carries on the explanationwill be in vain. Whether the principle will be used in a case should only rely on thejudge’s discretion. It can’t be included into traditional logic system by the way ofconcept law. In view of this, the article puts forward the new method of applicationfor the principle of frustration of purpose.According to the article, the application research of the principle shouldconform to the follow process: do systematic thinking about the dynamic process of“the event occurs�'the principle applies”, and summarize the reference factors in eachstep. It can not only distinguish the principle of frustration of purpose from thesurrounding concepts reasonably, and also can make the judge to do the correct applythough correct understanding in the judicial practice. On this basis, the article makefurther judgment on frustration of purpose and the surrounding concepts, and talkabout the procedures problem that the applicable of the principle should comply withthough the research and comments on practice about item26of "JudicialInterpretation of Contract Law (2)". Finally, the article based on the example aswhether the principle can be applied in the disputation about housing contract coursedby the property market regulatory policy and how it can be applied to discuss thesystematic theory of the application of the principle of frustration of purpose talkedabove.