Theory Of The Understanding And Apply Of The Default Due To The Third Party And Its Responsibility

Article 121 of PRC Contract law provisions: "One party shall be liable for breach of contract to the other party,for the reason which attributable to the third party causes of default.To resolve disputes between the party and the third party according to the law or the agreement." Article 121 of PRC Contract law provisions the burden-sharing issues due to the third party causes default between the parties.However law does not limit the scope of the third party causes, therefore this article is controversial from the beginning of the development.According to the context of this article, "third party reason" did not make any limit, and the legislature and the related judicial interpretation also didn’t make any definition, so the third party may be associated with one party, may have nothing to do with both sides. Therefore the reason of "third party" can be very little, for example, the generally neglect of performance of the auxiliary people. Of course, it can also be very powerful, such as force majeure.And China’s contract law includes only a kind of force majeure, the third party causes are rarely which can be classified as force majeure circumstances.Article 121 provisions debtor will be liable for breach of contract due to the third party reason, which includes third party against the debtor’s rights or property ownership, and the case such as third party against claims positively. This is not rationality undoubtedly of the practice of not analyzing the specific issues. It would exacerbates the responsibility of the debtor, and make the third party to escape the punishment of the law which shall bear the responsibility. It also violates the principle of honesty and the fair in civil law. So it is necessary to need to define the applicable scope of the "third party reason", to limit the scope which the debtor will be liable for breach of contract.This article will be in the perspective of Article 121 th of contract law, to discuss the understand and apply of the default due to third party reasons and its responsibility. First of all, to discuss the default due to third party reason from a judicial cases. Then discuss the focus of controversy, that whether the debtor will be liable for breach of contract because of the the third party causes which he can’t control and foresee? Take this opportunity to discuss the default due to third party reasons related to Article 121 of contract law. Then introduces the legislation history of the Article 121 of contract law, respectively to discuss from the contract legislation background, development and modification, the final text in detail; Secondly, this paper introduces the theory of state and judicial practice of the theory on the default due to third party,and to analysis the default due to the third party under the principle of relativity of contract from the perspective of legislative investigation on the comparative law. Furthermore, deepening the understanding of the problem of the default due to third party;Thirdly, on the basis,to study the responsibility problem of the default due to third party. It introduces three aspects which includes the imputation principle, risk burden, and the contract constitutes theory of the default due to third party. It is a thorough analysis on the legal constitution of the fault liability principle and the principle of strict liability, and force majeure, etc; On the other hand, the default due to third party also is related with the security obligation of Article 37 of tort liability law. Take the hotel contract dispute for example, to explore the inn is assumed liability for breach of contract or supplement when guests are violated due to act of third party and the hotel did not fulfill the duty of security during the period of accommodation; Finally, the paper puts forward to the possible application of the program of the default due to third party. It includes clear about the default fact determination, to limit the scope of article 121 of contract law, the third person causes should not cover any third person positive infringement claims situation, then to solve the problem of theory and judicial practice.This paper is divided into five chapters:Chapter 1: The derivation of the problem of default due to third party and its legislation evolution. By analyzing the introduction of a judicial case, to analysis the default cases due to third party in article 121 of contract law. This case is about rental contract dispute between supermarket A and company B, The main focus of controversy is that A supermarket and B house leasing contract cannot continue to perform because of the third party government, furthermore the reason is which company B can’t control and foresee. At this time, whether company B should be liable for breach to supermarket A ? Take this opportunity, then to discuss the default due to third party in article 121 of contract law. Then discusses the the legislative evolution article 121 of contract law in our country From the original article 33 of economic contract law and article 116 of civil law begin, analyzing the time background of the legislation which is practice of planned economy. Along with the development and modification of the contract, article 121 of contract law after "the scholar recommendations" and "draft" and "contract law draft" stage. And the scope of the third party also is expanding gradually, the provision of the scope of a third party as " reasons due to third party" in the final text which is article 121 of contract law.Chapter 2: To discuss the theory and judicial practice of problem on the default due to third party causes, and focus on article 121 of contract law as the basis of contract relativity principle and the limiting the scope of the third party. To analyze the contract relativity principle though legislative investigation on the comparative law between the Anglo-American law system and continental law system. There is little controversy to believe that article 121 reflects the contract relativity principle in the theoretical circle, of course, there are exceptional circumstances. Author thinks that under the contract relativity principle, to identify the responsibility correctly only by making clear to distinguish between different contract subjects and contract relationships. And to confirm whether the third party shall bear the responsibilities of the contract by identifying that whether the third party shall bear the obligations of the contract, and the contract relativity principle is not absolute exclusion of a third party assume the contractual liability; Theory mainly divided into three aspects,they are theory of restrictions, theory of the abolition and strict liability of the angle of view. The theory of limit theory and the abolition theory hold the view that to restrict the scope of the third party and illustrate the nature of the contract relationship. The perspective of strict liability thinks that the principle of contract law is strict liability in our country, in this case that the debtor will bear liability for breach of contract in accordance with the provisions of contract law whether or not there is negligence; The practice of judicial practice mainly discusses from directly exclusion of claims of creditors, elimination of the debtor taking the third party causes as a relief, and limit the scope of the third party in some special cases.Chapter 3: To introduce the liability problem of the default due to third party, from the responsibility principle, the risk burden, and the contract constitutes theory of the default due to third party. Firstly, to discuss the dispute of the principle of imputation in the contract law of our country. To analysis the legal constitution based on the background of fault liability and strict liability, emphasis on adopting the principle of strict liability in our country. However, this paper thinks that although the strict liability has its advantages, but there are some defects, mainly reflects that it cannot identify responsibility accurately in many cases and so on; Then discusses under the principle of strict liability, the fulfill barriers of the default due to the third party is a risk, and to explore the relationship between default due to third party and the force majeure; Combining the contract constitutes theory to analyze the nature of the contract is that the debtor will be liable for breach of contract is based on undertaking the debt through contract. Defaults will inevitably lead to legal imputation, and emphasizes the key of whether the debtor bear responsibility is the determination of content of the contract.Chapter 4: Discusses the relationship between article 121 contract law and article 37 of the tort liability,though the obligation of security in article 37 of the tort liability law, concurrence and interlinked points between the default due to third party and security obligation.And analyze the difference between imputation of liability for breach of contract and tort liability though different constitutive requirements and responsibility principle.Taking hotel contract dispute as an example,to discuss the violation to guests due to act of third party during the period of accommodation, otherwise, the hotel did not fulfill the duty of corresponding security obligation, residents in the lawsuit can choose article 37 of the tort liability law to make hotel bear corresponding responsibility,also can make the hotel bear corresponding liability for breach of contract according to the 121 th of contract law. However, in legal effect will appear bigger difference by quoting different laws. This paper thinks that the security obligation of tort law should not be absolute, we should determine the extent of its obligations by considering the possibility of the hotel preventing damage results, not necessarily take all harmful consequences.Chapter 5:This paper puts forward to the possible application of the program of the default due to third party.It includes clear about the default fact determination, limit the scope of article 121 of contract law,the third person causes should not cover any third person positive infringement claims situation,then to solve the problem of theory and judicial practice. Firstly, clear to determine the default facts,if there are no facts, directly determine the debtor does not assume liability for breach of contract,if the default is true,should determine whether the reason for the third party or not, whether constitute exemptions of force majeure, or the debtor will be liable for breach of contract.Secondly,to limit the scope of article 121: the debtor could advocate disclaimer by the third party constitute force majeure.At the same time,article 121 are not applied to the contract which are constituted of liability as responsibility in contract law.Thirdly,the third person in article 121 should not cover any third person positive infringement claims situation.