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The Legal Effect Of Refusal To Perform

Posted on:2020-10-23Degree:MasterType:Thesis
Country:ChinaCandidate:Y SunFull Text:PDF
GTID:2416330572994049Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
On the basis of summarizing the practical problems and theoretical basis of refusal to perform,this paper divides refusal to perform into four types,and through specific case analysis,points out that the current law can not properly solve the "deadlock of contract performance caused by refusal to perform".Then,it analyses and comments solutions in theory and practice from the aspects of current law,value and feasibility.Finally,the paper puts forward the countermeasures to construct the "suit of termination of performance".This article consists of three parts.The first part,through the three typical cases of refusal to perform,analyzes the contradiction of the current law in the judicial application and the difficulty of drawing out the value judgment,and divides the refusal to be divided into four types: the first is that the observant can realize the actual requirement of the defaulting party.For the purpose of fulfilling the contract,the contract continues to move forward;the second is that the observant party chooses to terminate the contract and demand damages,and the contract is eliminated;the third is that the defaulting party can change or cancel the contract,for example,through the situation change rule;The contractor has the right to cancel the contract.Although the performance of the defaulting party cannot be obtained,it does not terminate the contract,and the defaulting party cannot change,terminate or terminate the contract.In the first three cases of refusal to perform,the contract either continues to be performed or is eliminated.In the fourth case,the contract is hindered and cannot be smoothly carried out or developed,and the contractual relationship is in an unresolved state for a long time.This article refers to this as "the refusal to perform the contractual performance impasse".Therefore,the scope of this study is how to set up appropriate legal effects for the deadlock of contract performance caused by refusal to perform.In other words,when the fourth situation of refusal to perform occurs,where should the contract go and how should the rights and obligations of the parties be designed and balanced?The second part focuses on the analysis and evaluation of solutions in theory and practice.The first is to apply the regime of change of circumstances.Although the principle of fairness and good faith is used to adjust the rights and obligations of contracts,the system has its strict and too narrow applicable conditions,and the application of the change of circumstances is quite prudent.Only when other remedies are exhausted can it be applied,and it must be submitted to the High People's Court for examination and approval.In addition,the legal consequences of the change of circumstances are inconsistent with those of the refusal to perform.Therefore,it is impractical to solve the deadlock of contract performance caused by refusal to perform by situation change.The second option is to give the breaching party the right to rescind the contract.The academic circles divide the theoretical research on the right of rescission of contract of the breaching party into the supporters and the opponents.The advocates argue from the perspectives of "parties" in Article 94 of the Contract Law which can be interpreted as "parties to a contract","non-punitive nature of contract law","incomplete contract theory","high cost of actual performance" and "efficient breach of contract theory".The opposition can't refute it from the perspectives of the right of rescission due to its breach of contract,strict adherence to the principle of contract and prevention of opportunism.Through comprehensive analysis,it is not reasonable to give the breaching party the right of rescission.This scheme will result in the illusion that the breaching party has the right to rescind the contract in a broad sense,and that the breaching party's right to rescind the contract will break the original system of rescinding the contract.In addition,the parties in favor of the contract are actually demonstrating that the breaching party enjoys the right to terminate the contract under specific conditions,so the breaching party enjoys the right to terminate the contract only under special conditions.The third option is to apply the system of judicial dissolution.Although the party in breach of contract can not obtain the right of unilateral rescission according to the judicial rescission system,it can initiate a suit for rescission of the contract,and the court directly decides to rescind the contract under certain conditions,which essentially gives the party in breach of contract the right of rescission.The third part proposes solutions.Through the "terminating the performance of the lawsuit",the "stubbornness of the contract performance caused by the refusal of performance" was resolved.First of all,the termination of the lawsuit has long precedent in judicial practice,namely the case of the second Supreme People's Court Gazette in 2005,"Beijing New Auto Company v.Huarong Company Equity Transfer Contract Disputes".Secondly,on the value level,through the reference to the institutional value of the statute of limitations,the principle of honesty and credit and the principle of fairness,the three aspects of the amendment of the strict contract and the protection of the interests of the debtor are demonstrated.Finally,the feasibility of the program lies in: First,setting up the pre-procedure,requiring the defaulting party to exhaust other means before it can initiate the lawsuit to terminate the performance;second,the case is classified as a "contract dispute" case or a specific contractual dispute;Subjective review requires the defaulting party to be in good faith,and the defaulting party is excluded from deliberately filing a lawsuit.Fourth,perfecting the applicable situation: First,the "performance fee is too high" included in Article 110 of the Contract Law.Second,after the breaching party refuses to perform the contract,the dismissal of the right holder refuses to exercise the right to terminate the contract,resulting in the contract being in an unresolved state for a long time.If the contract continues to be performed,it will be obviously unfair to the defaulting party and the interests of both parties will be greatly unbalanced.The third is a monetary debt with personal obligations.Fifth,the defaulting party is liable for damages.After the defaulting party's claim for termination is supported by the court,the observant party can no longer ask the defaulting party to continue to perform the contract.For the part that has already been fulfilled,it is not necessary to restore the original condition.Because the contract itself has not been eliminated,the observant can retain the part that has already been fulfilled.At the same time,in the case of damages to the observant party in the direction of breach of contract,the judge must not only consider the actual loss,but also determine the majority of the available benefits of the defaulting party based on the fault of both parties.
Keywords/Search Tags:refusal to perform, Deadlock in contract performance, right of rescission of contract of the breaching party, change of circumstances, judicial rescission, termination of performance
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