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Study On The Compensation For Profit Obtainable Of Breach Of Contract

Posted on:2016-02-14Degree:MasterType:Thesis
Country:ChinaCandidate:Y B CaiFull Text:PDF
GTID:2296330479487880Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The research background and purpose of this paper: although the article 113 of the Contract Law of the People’s Republic of China set the category explicitly in which default can get interest, Guiding opinions on several problems of the Supreme People’s Court on the trial of cases of disputes under the current situation of civil and commercial contract, emphasized clearly paying attention to the right of petition for expectant interest but the judicial practice is cautious, conservative, and even negative, most of the court will deny the plaintiff’s claim for the unpredictable of interest or the uncertainty(the uncertainty of evidence or the calculation) of the loss. Across the regions where market economy are more developed give a higher degree of protection on expectant interest because expectant interest is the purpose of the clients of contract, it related to the enthusiasm of the clients performing their contract and the growth of the whole society’s economic benefits, so it is necessary to change the difficulty of law expression divorcing from the practice from the two aspects of basic restricted rules which are universally applied.Study method of this paper: Basing on the large collection of the damage compensation cases involved the expectant interests(selection and arrangement of the people’s court at all levels), by the way with "empirical research" as the logical starting point, "explain theory" as the key, reality across the paper, typed sorting and analyzing the practical and theoretical problems of the expectant interest. Strive for a comprehensive range reflects of how to solve the demands of the parties in judicial and defense of a disputed point. Through the theoretical study of comparative law to lay a solid foundation for the interests of the default expectant compensation, and indicate the operable and applicable specifications for the basic restricted rules, then attain the goal of the law to protect the parties to the reasonable expectations, consolidate credit relations and trade order.The research content, to be specific, this paper consists of introduction, text and conclusion. The text is divided into the following four parts:The first part, the last chapter where clear basis why compensation and restricted, this chapter defines the scope and essential characteristics of default expectant interest concept of China using in this paper. By generalized default expectant interest that is shall gain without profit(profit) should be avoided and did not avoid(spending), that is the compensation of negative interest, arising from a property value added benefits can be obtained due to the debt nonperformance. Determining the concept confusion and deviation, based on Application of foreseeability rules and deterministic rules, default in the judicial practice set clear and other contract effectiveness under the default expectant interest relations, namely, in prior contract obligation and post contract obligations, should be given the protection of expectant interest. At the same time, in the judicial practice that except for the relationship between the deposit and the interests of the expectant is thought questionable, usually decided that penalty due to breach of contract and expectant interest can both apply. After solve basic related problems, then with appropriate legal technical support, a specific legal norms will form. This is the basis of the discussion in the next chapter of the model of all kinds of basic restricted in the empirical and the legal theory.The second part, first of all, from the Angle of the debt law theory and economics, to explain the cause of the default expectant interest compensation and the reason of basic restricted. Through the angle of the essence of market economy, contract incentive function, efficiency, default analyses the reasons of the expectant interest compensation. Then through summarizing the common basic restricted rules in trial documents of China, concludes that the legal predictability rules and deterministic rules out of the judicial practice are discussed in this article. Many theories on the demonstration provides the basis for the basic restrict of breach of contract damages compensation, the basic limitation from the influence of ideas behind the legitimacy and the system illustrates the basic aim of compensation of expectant interest is to let those problems such as the benefits can be like high risk compensation, traders in the contract can predict the risk to adjust for or more prudent to perform the contract. The significance and necessity of basic restricted is finally expounded, that is to limit the damages for breach of contract, must find the reasonable limit the scope of the compensation standard. Through the restrict of breach of contract damages, we achieve the goal of accurately determine damages reasonably. Because predictability and deterministic finite rules under the background of specific legal system has a common applicability and priority, so it will be classified as the basic restricted rules. For basic restricted rules has universal applicability in the judicial practice, so it is necessary for later in-depth study.The third part, I admire the "predictable" rules in the article 113 of the Contract Law of the People’s Republic of China. But at the same time, according to the fuzzy problems of China’s legislation on predictability rules, after analyzing the constitutive requirements, bring the obligation of informing in judgment and information disclosure into it and at the same time, make applicable situations and eliminate content clear. Because causal relationship rules of the German law and predictable rules of Anglo-American law system are the systems neck and neck in current compensation system, so this article will also make a brief comparison on the two kinds of model, it will bring beneficial ingredients into the judicial practice in China., for example, through draw lessons from Anglo-American experience, combined with China’s firm steps of expectant interest, to causal relationship as the major premise, judge "natural" non interests outside intervention grew up contract, between them is the "reasonable man" ‘s foreseeable rules to judge if it can foresee its related categories, then according to foresee situation is to use general or special circumstances to presumption of implied terms, if based on rules and implied terms are not foreseeable that the breaching party can or should foresee can get interests damage, we shall examine whether the breaching party to perform the information disclosure obligation, if the default party did not disclose relevant information, may not request expectant interest compensation.And compared to the predictability of the rules in legislation, the important deterministic rules which is isolated in practice, has become an important means and rules to determine the default expectant benefits. Under dimensions of foresee rules or relative causal relationship, through research and analysis of comparative law, deterministic rules also need a "reasonable man" enforce it in the foreseeable category. So the rationality rules mixed certainty rules with predictable rules, which are interdependent with each other, complement each other. To better study and apply to certainty rules, through the most commonly used in the judicial practice of non-statutory requirements of certain rules defined and typed discussions in order to better guide practice, in order to effectively protect the party in breach to interests, and look forward to enhance the applicability and operability of default relief system in China.The fourth part, after the basic restricted rules is determined, it is a important problem that how to link up the fact and the law on the rules of evidence and evidence standard. On usually regulation, the civil procedure law of the People’s Republic of China set general rules of "who advocates, who proof" against the compensation of expectant interest of breach of contract, but about the contract dispute of expectant interest of breach of contract applying strict liability, it is not conducive to commercial flow of credit and to protect the interests of the victim, hence the paper argues that under the condition of the modern business is more freedom, we should increase the proof obligations of the breaching party, such as if the client who breach the contract can not prove himself there will be a presumption of causal relationship and he will liable for breach of contract, which alleviate the plaintiff’s burden of proof, increase breaching party proof obligations and presumption of causality of the necessary conclusion. After determining the allocation of proof responsibility, we shall adopt the high probability and deterministic weakening standards of Anglo-American law system in proof standards to fully safeguard the interests of the victim.The related issues after this paper, such as gains offset the losses, contributory negligence and mitigation rules belong to the issue outside of the basic restricted rules which judge whether there is any expectant interest and refine the measured and calculated interest, strictly speaking, I think it belongs to reduce conditions so it will not be discussed in this paper.
Keywords/Search Tags:Duty of breach of contract, Expectant interest of breach of contract, Principle of limited compensation, Principle of basic restriction, Rules of evidence
PDF Full Text Request
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