Research On Excessively High Expenses Of Performance In China

Contract performance is a relatively basic and important link in the contractual relationship.In accordance with the principle of strict adherence to contracts,after the contract is signed,if one of the parties fails to perform according to the contract or performs improperly,it shall bear the corresponding liability for breach of contract.China's contract law upholds the tradition of the civil law system,and the actual performance of the breach of contract responsibility takes precedence over damages.In practice,however,actual performance is often hindered.In the second half of Article 110,paragraph 2 of the "Contract Law" in China,"excessively performing expenses" is set as one of the exceptions for continued performance.As an important rule under the system of non-payment of benefits,the implementation of high costs is merely a matter of figures.It is concise and not controversial.Not only has the controversy continued to exist in the theoretical community,but also in the application of justice.First of all,the theoretical controversy on the issue of excessively high expenses is mainly concentrated on the following three points:First,the object of comparison for performing excessively high expenses.Comparing the performance expenses with the debtor's performance benefits will lead to mixed use with other rules,such as the situation change system.Comparing the performance expenses with the performance benefits of the contractual parties will indirectly jeopardize the contractual principle of contractual compliance.Therefore,it is advisable to set the object of comparison for performing excessively high costs as a comparison of performance expenses and creditors' performance of benefits.The second is to determine the criteria for fulfilling high costs.The "absolutely unreasonable" and "relatively unreasonable" criteria are not theoretically and logically delayed and lack operability.Most scholars agree with the criteria of "economic rationality",and they have their merits from the perspective of interest measurement,but they lack comprehensive considerations such as the fault of the debtor.Third,there is a difference in the legal application when the high cost of performance is different from the principle of change of circumstances,and it is more worthy of being affirmed that the implementation of high costs and priorities is applicable.Secondly,the problems existing in the implementation of the over-expenses rule in China's judicial application mainly include three aspects:First,the economical reasoning makes the referee's persuasion less necessary,and the referee's reasoning is not sufficient.Secondly,local courts have different standards for the implementation of high fees,some of them are even contradictory,and the phenomenon of inconsistency in the judiciary is prominent.Third,it is not clear whether the court should apply for ex-officio.Whether the performance of the fees is too high is a matter for the court to take the initiative to review,and whether the court can actively apply the rule to terminate the contract,the practice of the court varies.Finally,through the combing of theoretical disputes and judicial dilemmas combined with the useful reference to the extraterritorial legislation,it provides ideas for clarifying our country's performance of excessive fees.First,the range of performance costs.Fulfillment expenses include the usual monetary costs,but also include intangible costs that are constituted by labor expenditures and performance time,but do not include the actual costs of court supervision.Second,the standard of performance is "excessive".When the performance fee exceeds 130%of the creditor's interest,it shall be deemed "excessive".When the debtor is at fault and the creditor has special interests in actual performance,the court should combine the case with the above general standards to a certain extent.Third,the legal consequences of excessively high costs.Excessive performance fees are the defense of the debtor against the creditor's continued performance of the request.In the ultimate sense,the creditor's claim for payment will be excluded.In the litigation of the debtor's claim to rescind the contract,the excessive performance of the fees may serve as the basis for the termination of the contract.However,it is necessary to satisfy the premise that the debtor is not at fault,the purpose of the contract cannot be fulfilled,and the observing party can be fully compensated.