The Application Of "The Excessive Cost Of Performance" In Article 110 Of Contract Law

The second paragraph of Article 110 of the contract Law of the People's Republic of China(hereinafter referred to as "contract Law")stipulates the applicable premise of "excessively high performance expenses" and sets it as one of the cases in which payment cannot be made.However,there are fewer legislative interpretations and more targeted academic research on this provision,resulting in the fact that the few provisions fail to meet the needs of complex and diverse realities,and that there is no uniform standard of adjudication for disputes relating to this provision.This also highlights the importance of continuing to study the application conditions of "excessive performance costs".The developed degree of market economy has changed in the past.Nowadays,in order to improve the allocation efficiency of social resources,the actual performance is not a single way to bear the responsibility for breach of contract.It is true that as another remedy for breach of contract,damages are self-evident,but the applicable conditions are not the same as continuing performance.In the judicial practice of our country,the breach of contract based on efficiency is often difficult to get the support of the judge.In the actual judgment,it is more inclined to follow theprinciple of actual performance and safeguard the interests of the compliance party as the priority.However,in the modern economic model dominated by market economy,the opportunity of benefit is fleeting,if the parties are unable to perform because they choose another more efficient contract.The default of the original contract can be recognized,and then the compensation for breach of contract can be paid to balance the damage of the compliance party.At this time,the compliance party can also satisfy its original interest needs.However,if we continue to enforce the performance of the original contract and take judicial measures such as seizure,seizure and auction of the subject matter of the original contract,we will not only consume more judicial resources,but also completely destroy the purpose of the breaching party in pursuing a new contract with high efficiency.It is also difficult to satisfy the expected interests of the parties to the transaction at the beginning of the conclusion of the contract.The purpose of this article is to provide a detailed explanation of the " excessively high performance expenses " of Article 110,paragraph 2,of the Contract Law,which is not applicable to compulsory performance or to perform the overpayment.".For the sake of " overpaying the cost " in the case of " overpaying the cost ",it is necessary to use the relatively mature default relief model of efficiency default theory to make a more explicit explanation for the "excessively high performance expenses".After the occurrence of the default,it is necessary to draw on the return of the two parties and the performance of the non-performance.If the former is higher than the latter,the defaulting party should have the support of the judge instead of continuing performance.This paper is divided into four parts.The first chapter is to introduce and summarize the actual practice in the judicial practice of the 110 articles of contract Law,which are "too expensive to perform".Through three different judgment standards in three cases,the second chapter of this paper discusses the application premise and definition standard of "too high performance cost",and satisfies the requirements of Article 107 of contract Law is the first prerequisite to apply Article110.In addition,there are two additional requirements to be satisfied,one isnon-pecuniary debt,the other is a party's request for performance.Moreover,since the proviso to Article 110 of the contract Law has three conditions in which payment cannot be made,the second "performance fee is too high" to be applied accurately.There needs to be a clear distinction between them and the other two situations.The third chapter discusses the legal effect of excessive performance cost,that is,the debtor acquires the defense right of refusing to pay.In the last chapter,the author puts forward the specific applicable standard in the contract dispute,which is typical of housing sale and purchase,and the performance cost is too high.Finally,the feasibility analysis of the application rule of "too high performance cost" is made through the test of typical cases in judicial practice.