Research On Problems Of Breach Of Contract Due To The Third Party

This article is thinking about the potential problems of Article 121 of Contract Law,which triggered by the phenomenon of different verdict results of one case in the trial practice:the risk of default due to third-party reasons is all placed under the debtor,and the scope of the third person has the possibility of unlimited expansion,so that it is easy to lead to unfair and unbalanced interests between civil subjects.It is difficult to find a similar legal design in the normative and case law rules in the comparative law,so that such a maverick rule need to be traced back.From the study of legislative evolution,historical background,legislative reasons,we can found that Article 121 is followed Article 33 of the Economic Contract Law(which has been invalidated)and Article 116 of the General Principles of Civil Law to a certain extent,and the scope of "third party" is showing the expansion trend,but its connotation still not make clear by the legislature.In addition,the finalization of Article 121 is inseparable from the principle of contract relativity and the principle of strict liability,so it's necessary to analysis this problem through these two perspectives in the theoretical level.On one hand,the principle of contract relativity does not exclude exceptions,and absolute abatement will have a negative impact,which is no longer in line with the development trend of contract law,and Article 121 is not entirely strict contract relative.On the other hand,the principle of strict liability cannot provide a justified reason either,we can consider from the negative perspective,the Articles that the contract law is specified in the case of a number of fault liability,should be applied to Article 121.The controversy over Article 121 is centered on two parts:the first is whether the provision should be repealed.Because it's not realistic to remove it in a short period of time by initiating a contract law amendment procedure,so continue to maintain is better.The second is the choice of the restricted path of the problem,to limit the third party(reason)ideas for the mainstream,other restrictive ideas to supplement.However,simply on restricting the "third person(reason)" category is ineffective,and two kinds of sub-problems are raised:third party infringement claims should not be included in the scope of Article 121;"performance helper" should not be referred to Article 121.The trustee,the agent and the third party acting on behalf of the party shall apply the corresponding provisions of the Contract Law respectively.There is also controversy over how to handle the conflict between Article 121 and the other legal provisions.We can treat the article as a statutory risk distribution rule for analysis,and to making up for the lack of declaration of will of the parties.If the risk of distribution rules(including force majesture rules,risk burden rules)are more detailed and reasonable and more satisfied with parties,then Article 121 should be passed.On the coordination of security obligations,we should distinguish between the contract which providing security for the purpose and other contract which just attached security obligation.For the former,it should be directly applied to the"Contract Law" to avoid the application of fault liability lead to exemption,which leaving the victim cannot be compensated in the third party infringement.For the latter,it should be considered that the establishment of unreal joint and several liabilities between liability for breach of contract of the debtor and tort liability of the third party.On this basis,the article has searched 1033 judges which involved Article 121 through the Peking University law database,and summarized the type of disputes,applicable meaning of judicial practice and the situations of not apply.And then try to conclude the "third party reason" type,but unfortunately,such a narrow path is proved to be impractical.In general,the judicial practice is mainly from the literal sense to understand Article 121,in which the standard of the application is very loose,and did not form a specific rule.However,some cases have noted the unrestricted application will bring significant detriment to the non-faulty debtor,and have taken roundabout approaches to try to avoid such unfairness.It is suggested that pay more attention to the special provisions relating to the breach of contract due to third party in the trial,and the special law be superior to the application of Article 121.In the case of the concurrence between breach of contract and infringement,we can ease unreasonably liability of the debtor by setting up unreal joint and several liabilities,and avoid the third party to escape responsibility by means of the accessory intervenor system to merger the litigation.