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The Theory Of Efficient Breach And Its Influence To The PRC Contract Law

Posted on:2020-01-19Degree:MasterType:Thesis
Country:ChinaCandidate:Y ChenFull Text:PDF
GTID:2416330599453693Subject:legal
Abstract/Summary:PDF Full Text Request
Efficiency breach is a new theory of breach relief proposed by the school of legal and economic analysis.In this theory,no party suffers from the breach,but the whole wealth of the society increases accordingly.Since its emergence,efficiency breach has been widely concerned by scholars.It is widely applied in common law system,but strongly rejected in continental law system.However,with the integration of the two legal systems,the concept of efficiency breach is gradually reflected in the civil law system.Because of the value of efficiency breach of contract,it is not in conflict with China's contract law,so it is necessary and feasible to introduce it into China.Based on the general interpretation of efficiency breach,this paper investigates its overseas application status and changes in order to provide enlightenment for the introduction of this theory into China's contract law,and then analyzes the necessity and feasibility of introducing efficiency breach into China's contract law,and further explores the specific path to introduce it into China's contract law.Besides the conclusion,the paper includes five parts:The first part is the introduction.Firstly,this paper raises questions and briefly explains the research significance of this paper.The theoretical significance lies in correctly understanding the connotation of efficiency breach and clarifying the current academic misreading of efficiency breach.The practical significance lies in analyzing the necessity and feasibility of introducing efficiency breach into contract law in China and sorting out the applicable conditions to be followed in introducing efficiency breach.Secondly,domestic research on efficiency breach of contract is insufficient,and foreign research on this theory is more comprehensive.Finally,the purpose of this paper is to correctly understand the connotation of efficiency breach of contract and explore the way to introduce this theory into China's contract law.The second part elaborates the general explanation of the efficiency breach theory.Firstly,the connotation of efficiency breach is defined from the three aspects of the earliest expression,generation and development of efficiency breach,that is,when the loss avoided or benefit gained by the breaching party exceeds the loss of the non-breaching party,the breaching party has the right to replace the actual performance with damages.Secondly,it introduces the theoretical basis of efficient breach of contract,including the theory of free choice of contract,the theory of the separation of law and morality and the theory of Coase.Finally,the core content of efficiency breach is introduced by three cases cited by Posner.The third part examines the extraterritorial application status and changes of efficiency breach.First of all,this paper takes the United States as an example to illustrate the wide application of efficiency breach in common law system,covering the emphasis on the remedy for breach of contract,the limitation of the scope of damages and other six aspects to promote the implementation of efficiency breach of contract.Secondly,taking Germany as an example,this paper expounds that the application of efficiency breach in the civil law system is strongly restrained to be gradually accepted.The design of the payment obstacle system and the regulation of the obligation to mitigate losses promote the implementation of the efficiency breach.The design of the payment obstacle system and the regulation of the obligation to mitigate losses promote the implementation of the efficiency breach.Finally,the paper concludes that the introduction of efficiency breach into China is the development trend,and China should learn from the applicable experience of the United States.The fourth part analyzes the necessity and feasibility of introducing efficiency breach into contract law in China.First,by analyzing the value of efficiency breach,which includes increasing the overall wealth of the society,realizing true freedom and stepping out of the traditional moral boundaries,it is concluded that it is necessary to introduce it into China.Secondly,through the analysis of efficiency breach and the purpose of the contract law legislation is not contradictory.It does not conflict with the basic principles of contract law in China,including the principles of good faith and fairness.It is concluded that it is feasible to introduce it into the contract law of China.The fifth part explores the specific path of introducing efficiency breach into China's contract law.Firstly,it discusses the macro and micro conditions for the introduction of efficiency breach into China's contract law.Among them,the macro application conditions include three aspects: taking the increase of the overall wealth of the society as the basis,taking honesty and credit as the principle,and conforming to the principle of fairness as the requirement.Micro applicable conditions include that the applicable order of damage compensation is in actual performance,the amount of damage compensation is equal to the expected benefit,the scope of damage compensation is limited by relevant principles,including the predictability principle,avoidable principle and reasonable certainty principle,and the calculation method of damage compensation should be unified in four aspects.Secondly,based on the applicable conditions,the relevant provisions of China's contract law to be improved.Finally,the relationship between the conditions is summarized.
Keywords/Search Tags:Efficient Breach, Specific Performance, Damages, Remedy for Breach of Contract
PDF Full Text Request
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