The Relationship Between Contract Termination And Risk-bearing

The risk-bearing originates from the Roman law,which is used to distribute the risk that the purpose of the contract can not be realized due to the damage and loss of the goods.The system of contract termination requires that one party bear the corresponding legal consequences because of its breach of contract obligations that could due to himself.With the termination of the contract system removing elements of liability,the risk-bearing and the contract termination mix together,then provoked controversy between theory of monism and dualism.In the legislation in our country,how to deal with the overlap of two theory is also need us to explore and improve.The first chapter of this paper analyzes the causes of the overlap between risk-bearing and the contract termination.With the development of the theory of contract termination,it removes elements of liability in order to free the parties from the contract more quickly.The purpose and application to the case of contract termination system overlapped with risk-bearing causing confusion in judicial practice.There was not a suitable choice of laws,and exists different judgment about similar cases.In the second chapter,the author tries to find out how to deal with the problem of overlap between risk-bearing and the contract termination from the perspective of comparative law.The monism and dualism debate strongly in the solution of the overlap between risk-bearing and contract termination.The monism advocate abolishing risk-bearing,then the risk-bearing is fully integrated into the contract termination,which to solve related issues.The dualism approve that it’s better for coexistence of two system,because the termination of contract system can not replace the role of risk-bearing,and that the models of risk-bearing rules are not same in every country.Civil law countries are more inclined to dualism,although they claimed monism,eventually return to the dualism.In this paper,the author analyze two models from value、applicative situation、procedures and legal effect.The author thinks that in the complicated contract relationship,the contract termination cannot be applied to all issues.In some circumstances,the rise burden rule has its irreplaceable advantage.Therefore when we legislate China’s civil code or general obligation law in the future,we should choose the dualism.The third chapter pay attention to find out the solution about problem of overlap between risk-bearing and the contract termination in the China.At present,the legal provisions of risk-bearing and the contract termination in our country are not complete and not unified and the provisions of risk-bearing stipulated in the sales contract.If one part defaults,the breach will have an impact on the transfer of risk,a serious breach of contract will lead to termination,risk-bearing and contract termination have different results.Because of Force Majeure cause performance obstacles,the two system have similar results,but which relates to many specific problems.The author by analyzing the legal results of two rules in application of Force Majeure、the debtor burden risk and the creditor burden risk,find out the solution.