The Interpretation And Identification Of The Excessively High Expenses Within Supervening Impossibility Of Performance

When the debtor fails to perform the non-monetary obligations and the creditor claims to continue to perform,the debtor can hold the right of defense to exclude the continued performance because of the excessively high expenses.The broad definition of the excessively high expenses will inevitably result in the ambiguity and the deviation in the practice case.Because of no definition of its object,the judicial practice had different standards to apply,such as creditors interests,the interests of the debtor or the perform cost.In the trial practice Hermeneutic circle often in the interpretation and identification.In other aspects,the interpretation of judicial decisions also involved collective interests,third party interests,remedial performance and the degree of difficulty in executing procedures.Therefore,it is necessary to clarify the interpretation and identification in order to achieve the standardization of practice.As an important part of supervening impossibility of performance,the interpretation and identification of excessively high expenses can refer to the UNIDROIT Principles and the German civil code which can accelerate developing and perfecting in localization.In a reasonable review on the rationality of the judicial practice and embodies the development,the excessively high expenses clause in there is "dynamic" applicable.In order to cope with the new situation which will happen,we should use dynamic system theory to assist in the interpretation and identification of that clause.Under the guidance of the theory of dynamic system,it is necessary to construct a more flexible way of identifying the main factors with reasonable burden,with the help of the negative factors and the positive elements.In addition to the introduction and conclusions,the dissertation consists of four parts:The first part gives detailed examples and discussion of the problems existing in theory and practice.On the one hand,it reveals the different judgments of the same case with broad understanding,on the other hand,it also reveals the difficulties and points of disagreement.Therefore,there is a need for further interpretation and identification.At the same time,it will pave the way for further theoretical.The second part mainly discusses the concept of the excessively high expenses in the system,so as to distinguish it with other concepts.This part will also study the origin from the perspective of comparative law which refer to the General Principles of International Commercial Contracts and German Civil Code.Due to differences in representation,the excessively high expenses that cannot be the same as the second paragraph of the 275 th of the German Civil Code which were compared and analyzed.In addition,as a kind of defense right against the request of the counterparty,it has a great influence on the performance of the contract,and it reveals the theoretical significance.The third part mainly analyzes the cost in detail.As one of the basic elements,the cost must be faced with the issue existed.Therefore,before the overall discussion,it is necessary to unify the understanding of the cost of continuing performance.This section responds to both the cost of money and the time burden,and also describes ways to convert the time burden to value.The fourth part firstly made categorization of the cases.Then based on the "dynamics" embodied in the practice,it revealed the possibility of applying the dynamic system theory.Finally,based on the categorization and various factors,a dynamic system evaluation was constructed.