On The Alternative Obligation

Alternative obligation and simple obligation is a typical classification in traditional civil law theory,but alternative obligation still lacks deep study in Chinese mainland,a series of theoretical questions concerning alternative obligation derive from right of option and impossibility of performance.The definition,contents and legal effects of alternative obligation,ownership of right of option have reached a consensus in Chinese mainland academic circles,however,the transfer procedure,inherence,revocation of right of option are still in dispute.To deal with impossibility of performance,we need to clear the logical order and systematically analyze right and obligation of parties under different circumstances of impossibility of performance.Compared with other similar obligations,alternative obligation has its independency and particularity in theoretical construction and rules.There is no regulation on alternative obligation in current law system of Chinese mainland,but judicial practices exist some disputes related to alternative obligation.Absence of related legal system of alternative obligation leads to loss of judicial determination standard,which is not conductive to the unification of legal system and legal construction.The theories and regulations of alternative obligation are quite mature from the aspect of comparative law,now the formulation of civil code is being the significant and key period,it is also the appropriate time to introduce alternative obligation in civil code,thus making up the lack of theory and regulation.If there is a separate debt chapter in the future civil code of Chinese mainland,alternative obligation had better be provided in the content of types of obligation or object of obligation under the general rules of obligation law.If there is no separate debt chapter,then alternative obligation had better be provided in the content of performance of contracts.Combined with outstanding civil code of comparative law and domestic scholars great contribution to the civil code work,the author tries to put forward a rules design of alternative obligation weighing detailed content and precise language.It is desirable that this paper could bring much better ideas and provide some reference value for the future legislation and judicial practice of Chinese mainland on alternative obligation.