Study On The Of Risk Burden Rule Of The Goods Of The Sale Contract

In this paper,the risk burden system discussed is limited to the risk burden of the goods of the contract of sale,and the other contract stipulated in the Contract Law,such as the lease contract,the contract for work,the custody contract and so on,do not discuss the risk burden.In the contract of sale,as well as the contract is established,and the corresponding rights and obligations began to be distributed among the litigant,the contract of sale and other contracts is the most obvious difference is related to the transfer of the goods of the transfer of ownership issues,according to the risk and interests Consistent with the principle that any person in the enjoyment of the interests of the goods,but also need to bear the corresponding risks,social life is complex and changeable,especially in the sale of the contract,and China's "Contract Law" provides the risk burden system,Not the goods of the risk transfer and ownership linked to,but take the international practice,"risk according to the principle of delivery of transfer",it will lead to a lot of problems in reality.If the seller and the buyer from the date of the conclusion of the contract until the completion of the contract,if the goods in the process due to the parties can not be attributed to the cause of the destruction,loss of the situation,how should the distribution between the parties is this loss.So,The risk burden system to be explored.This article is divided into three parts on the sale of the goods the risk of the issue to be analyzed.The first part is the basic theory of risk burden,divided into the basic theory and evaluation of the risk burden rules of the contract of sale,the relevant provisions of the contract law on the risk burden of the two aspects of the three major international legislation to compare and analyze.The merits and demerits of the various legislative cases,and finally affirmed the rationality of the legislation of the doctrine of delivery.And then focus on the analysis of legislation adopted by our country,combined with the "contract law" on the general burden of risk and the risk of the goods on the way,the goods involved in the risk of transport and the performance of the contract does not meet the timing of the risk burden,Clarify the legislative power of the law,and the specific problems that may arise.The second part is the discussion of the risk burden rules under special circumstances.The risk burden rules apply to the stage after the conclusion of the contract until the completion of the contract.How does the parties in the default case reasonably share the risk? The contract law does not make specific Regulations.This paper will analyze the risk burden from the sale of the number of items,the risk burden rules of the parties' default and the impact of the contract on the risk burden,and introduce the typical case,combine the theory and practice to reveal the current "Contract Law" provides the shortcomings,and put forward the corresponding solution.The third part is the discussion of the risk burden of the goods of the special sale and purchase contract.At present,China's "Contract Law" does not make special provisions on the risk burden rules of the goods of the special sale and purchase contract.If the law does not make special provisions,The risk burden on the goods of the special sale and purchase contract should apply to the general provisions of Article 142 of the Contract Law on the risk burden rules,and the risk of the goods is transferred as a result of delivery,but not all special sale contracts.This paper analyzes the risk burden of several special special contracts for sale and purchase,including the risk burden of the sale of goods in installments,trial sale,auction and online shopping,and the risk burden on different types of contracts.Different analysis and discussion.