The Research On The Theory Of Effcient Breach

The theory of effcient breach is an important theory of the economic analysis school.It is rooted in the common law tradition of the Anglo-American legal system and is driven from theory to practice under the rule of law in the Anglo-American legal system.Due to the static nature of the contract terms and the variability of the environment on which the contract is based,conflicts often arise,which will directly affect the parties' choice of default remedies.The traditional breach of contract theory is deeply influenced by morality and ethics.The contract must be established as a creed and has a negative attitude towards breach of contract.Actual performance has always been the main measure for breach of contract relief.However,under strict actual performance rules,there may be a serious imbalance in the economic interests of the observant party and the defaulting party.This neglects the protection of individual fair interests when the defaulting party can achieve the benefit improvement of both parties.At the same time,since actual performance is a non-self-reliant means of relief,it needs the intervention of state power to ensure the follow-up implementation of the contract,which will bring justice.The increase in cost has inevitably exacerbated the contradiction between social equity and social benefits,and hindered the realization of the value of legal efficiency.The efficiency default theory of the Anglo-American legal system starts from the perspective of saving transaction costs and realizing the balance of interests.It is argued that if the default or avoided loss of the defaulting party exceeds the gains obtained by both parties during the performance of the contract,then the default is efficient.The law should not inhibit such behavior and force actual performance.When Posner constructs its efficiency default theory,it not only absorbs the basic theories of economics and law,but also puts forward the theory of social wealth maximization as the support of efficiency default theory on the basis of utilitarian criticism.The theory of efficiency breach and the traditional contract must have a big difference in its operational logic,which is mainly reflected in four levels: First,there are differences in the concept of contract ethics.The concept of traditional default is a theory of contract law,which acts.Just as a priority to the good of results,efficiency default theory is a theory of teleological contract law.The criterion for emphasizing whether a behavior is just or not is not whether the behavior itself has a proper attribute,but whether the way and strategy adopted by the person can be maximized.Pre-set value goals before implementation.Second,the contract assumption is different.The traditional default theory is based on the completeness of the contract as the premise of its contract assumption,while the efficiency default theory absorbs the method of economics and regards the contract as an incomplete contract.Third,the choice of default remedies is different.The traditional default theory uses actual performance as the main remedy,while the efficiencydefault uses damage compensation as a remedy.Fourth,the difference in the perspective of methodology,the traditional contract theory from the perspective of law,adopts the logical thinking method of abstract reasoning in the civil law system.Efficiency default breaks through the singularity of perspective and realizes the integration of economics and law.The efficiency default theory has indeed realized the transcendence of the traditional contract theory to some extent.The theory has adopted the efficiency as the value orientation.Since its introduction,it has produced great repercussions in American society.At the same time,it is highly respected by the academic circles.Justification also raised doubts.In fact,from the perspective of value,in addition to the efficiency value,efficiency default also implies the free value and fair value of the contract.From the perspective of balance of interests,it can correct the substantial inequalities between the defaulting party and the non-defaulting party brought about by strict actual performance,and achieve a balance between personal interests and social interests.From a type perspective,different types of efficiency defaults can achieve efficiency improvements under economic analysis.It can be said that the efficiency breach theory has the legitimacy foundation of its existence,which provides a new way of thinking and provides a reference for us to reflect on the alternative liability of default.Although the efficiency breach theory has influenced the study of British and American contract law and its legislation and judicial practice,it has not paid much attention in China.The author believes that when dealing with the efficiency violation theory of the Anglo-American law,the first thing should not be negatively expressed by the human being,but should be objectively recognized from an understanding point of view.As an efficiency-oriented theory,this theory is intrinsically consistent with the efficiency value appeal of socialist market economy.At the same time,the openness and related rules of China's contract law system also provide favorable space conditions for the introduction of efficiency default theory.Therefore,the introduction of efficiency default can be considered from the applicable field and the rules level,in order to better improve China's breach of contract relief system and achieve a reasonable balance between the pursuit of individual interests and social interests.