| The risk burden system is to solve the problem of how to share the loss fairly if the object that is not subject to the cause of the two parties is damaged or lost.The system is directly related to the immediate interests of the parties to the contract.However,national legislation and international conventions have different legislative concepts for the system,and the relevant legal provisions are quite different.Even in China,there is a big controversy about the risk burden system in the sales contract.Therefore,analyzing the risk burden system of sales contracts has a strong practical significance.Regarding the concept of "risk",academic circles have always been controversial.The focus of the dispute is whether "risk" should be"price risk" or "payment risk".After analysis,this paper considers"risk" as aprice risk".As appropriate.Based on the concept of "price risk",the premise of the risk of occurrence is that the risk occurrence is uncertain,the risk occurs before the completion of the sale contract and the risk is not attributable to any One party.The legislative models for the risk burden of sales contracts mainly include ownership risk burdenism,creditor risk burdenism and debtor risk burdenism.Through analysis,it is found that the risk of ownership risk is mainly to consider the risk transfer of the subject matter from a static perspective.When the subject matter is static,the risk is relatively stable and it is taken for granted by the owner.However,in the dynamic trading process of the subject matter,the trading behavior itself will affect the occurrence and prevention of the risk of the subject matter.Therefore,the ownershipism can not adapt well to the rapid development of the modern commodity economy;the creditor's risk burdenism is mainly beneficial to the sellers in the contract of sale and is not conducive to the buyer,but the reason why the country has so specified is because of its property rights.The change model undoubtedly adopts the creditor' s righteousness;the debtor's risk burdenism can better explain the implicature of the dual existence contract,and it is the pursuit of the fair concept of exchange.There are delays in implementation and incomplete performance regarding the special risk transfer situations in China*s sales contracts.With regard to the delayed performance of the debtor,China has included it in the scope of liability for breach of contract.When the creditor delays receiving the contract,there is a relevant provision in Article 146 of the Contract Law of China,but there are still deficiencies:there is no clear requirement for the seller to have the obligation to notify the buyer after placing the subject matter at the place of delivery;There is no provision for the timely destruction of the subject and the loss or loss of the subject matter.When the debtor' s appearance is not fully fulfilled,there is no provision in China's current law.When the debtor has incomplete quality fulfillment,Article 148 of the Contract Law of China has made provisions,but there are still deficiencies:there is no requirement for the seller to deliver the goods that are not in conformity and the buyer's failure to accept the impact on the risk burden;there is no requirement for the buyer During the period of receiving the object and exercising the right of rescission,the object will be returned to the risk of damage and loss of the pre-sale object.Therefore,China can learn from the above-mentioned issues and draw on foreign legislative models.Clarify the preconditions for the "deliverability" principle of the risk burden of China' s sales and purchase contracts;clarify the reasons for the risk of the subject matter of the sale and purchase contract;clarify the risk rules for the buyer' s delay in receiving the contract;and increase the risk liability under other trading methods.We can make China's sales contract risk burden system take into account efficiency and safety on the basis of practical needs,and give full play to its role in promoting market economy prosperity. |
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