Research On The System Of Actual Performance

Actual performance plays an important part in China’s responsibility system of contract breach.However,it is not very often adopted in judicial practice. On the one hand it reflects that the modern life is about economics,realizing the economic benefits is the main purpose of fulfilling the contracts;on the other hand there are a lot of obstacles in application of actual performance,including the difficulty of execution,with the status of the parties,the situation of applying to actual performance and so on. In many cases the judges are often reluctant to perform the actual performance out of the concern of different interpretations.As the actual performance “declining”,is it really so dispensable?That is a question worth exploring.Especially with the theory of efficient breach rises,application of actual performance is suffering great challenge.Clearing the applying conditions on actual performance is not only related to the two parties’ interests,but also related to the social good ethos formation and implementation of fairness and justice.By analyzing the theory of efficiency breach,we can find the positive value and take it into the system of actual performance, in order to improve our system of liability.Our legislation clears the applicable condition of actual performance,and it points out that whoever breaching contract should be liable to perform actually.Meanwhile,regarding to specific cases,actual performance is excluding,such as the overall social benefit,or the inherent benefit of defaulting part,or the non-breaching party’s personal reasons which led to the loss of the right requiring actual performance.Although there is special provisions,but these provisions are not yet very clear.The non-breach party lose in a dilemma whether he can require actual performance,and the judges are also confused whether to support or choose other remedies. This uncertainty has greatly hindered the application of actual performance,and is not conducive to balance the interests of both party.Foreign legislation and judicial practice differ from each other and contain different philosophy.This maybe take us some inspiration.Finding the inadequate of actual performance and then trying to improve it is the main content of this article.