Research On Problems Of Breach Of Contract Due To The Third Party

The third-party reason for breach of contract is stipulated in Article 121 of the Contract Law.In judicial practice,such cases have risen year by year,and there are not a few cases in which the same type of case has different judgments.Some cases are two unrelated but similar cases,based on the different interpretations of the law by different courts leading to differences in results;the other type is very between the first and second trials of the same case.As far as Article 121 of the Contract Law is concerned,the specific scope of the third party is not clearly defined.When the court judged the case,it had a large discretion.Under this range,the debtor was overburdened,and the application of the article in the academic circles was controversial.The scope of a third person may be limited to the understanding of the fulfillment assistant or may be extended to any third party other than the parties to the contract,while expanding the liability of the debtor.Therefore,the debt assumed by the debtor is magnified as “excessive debt”.Since the enactment of the contract law,there havebeen many views on the article,such as the theory of limitation and abolition.The abolition theory advocates that 121 articles should be abolished,and merely restricting the application of the article cannot achieve the purpose of safeguarding judicial justice.Most scholars of the restriction theory do not think that it is necessary to abolish Article 121 of the Contract Law and can restrict the Article 121 to achieve the purpose of correctly applying the Article.But the theory of limitations also has different views on how to limit the article.Some believe that the root of the article is that the scope of the third party is unclear,which makes it difficult for the court to correctly grasp the limits of the "third-party reason" when applicable;the other believes that the "third person" should not only be regarded as "Third person",but should explore the root cause of the application based on the debtor's responsibility.Because of the scope of the third person's reasons,the expansion is the debtor's limit of responsibility.If the debtor's responsibilities are not magnified,even if the third party's scope is relatively unknown,it will not adversely affect the transaction.The root cause of the above dispute should be discussed in the legislative context of Article 121 of the Contract Law.Article 121 of the "Contract Law" is derived from Article 33 of the "Economic Contract Law",Article 116 of the "General Principles of Civil Law” and published in the draft of the "Contract Law" scholars and the draft contract law.The process of the final text of the Contract Law.During the formulation of the contract law,it appears in the form of a draft of the contract law scholars,and finally appears as our current contract law.Although this series of laws borrowed from foreign legislation,it was influenced by China's national conditions at that time.Article 121 of the Contract Law originated from the system of fulfilling supporters in the civil law system,but China has no fault liability mechanism to limit the debtor's upper limit of liability.One-sided transplant law,but there is no legal restraint mechanism that is compatible with the legal provisions,which leads to constant disputes in.On the Peking University's database,using the 121 st article of the Contract Law as the key,nearly 4,000 judicial cases were searched,and the types of cases were classified.The contracts involved included commercial housing sales contracts,savings deposit contracts,construction project construction contracts,and leases.Contract and equity agreement.Entrusted contracts,contractual contracts,technical contracts,and many other well-known or unnamed contracts.At the same time,it is also found that from various cases,most of them are inseparable from two categories:First,Article 121 of the "Contract Law" is literally applied,and breach of contract is not caused by the reasons of both parties.They are all identified as “reasons of third parties” and are based on Article 121 of the “Contract Law”;the other is the exclusion of parties to the contract,except for the use of Article 121 of the Contract Law to determine the legal basis for the relative nature of the contract.Contractual responsibility of someone other than that.In most cases,the shortcoming is that the court has applied the differential interpretation of the article and adhered to the interpretation of the article 121 but failed to apply it from the level of purpose interpretation.However,all parties involved in the non-contractual parties are blindly investigated the debtor's responsibility and exclude the debtor's own defense against breach of contract.However,in practice,in the case of savings contracts,despite the involvement of third parties,courts often view banks as failing to comply with prevention,security and confidentiality obligations as a key element.Different from Article 121 of the Other Contract Law,the court first considered not the third-party reason,but whether the bank itself violated the contract,that is,it did not fulfill the corresponding obligation to deposit the funds in the deposit card for the depositor.The premise of the application of Article 121 of the Contract Law.As far as these defaults are concerned,it is difficult to tell whether it can be attributed to a third person.Instead,it is essentially a breach of contract,but it provides an opportunity for third-party intervention.That is to say,if the bank itself does not have such a default,even if the deposit amount in the depositor's account is reduced by the third party,it does not necessarily constitute a liability for breach of contract.This kind of thinking has been confirmed by legislation and is worth learning.For Article 121 of the Contract Law,the author believes that it can be properly applied through reasonable restrictions.The restrictions on the article should be cut from the debtor's perspective.From the judicial practice,it can be concluded that thescope of the third party is not unrestricted.The main dispute of Article 121 of the Contract Law is that the liability of the debtor does not set a reasonable limit.In the possible restrictions,starting from the preconditions of the debtor's exemption,whether the debtor itself has a breach of contract,and whether the third party's cause has a decisive effect on the debtor's default,as a prerequisite for determining whether the debtor can constitute an exemption.At the same time,if the third party's cause is force majeure,the debtor should be “forgiven”.The risk burden principle is applied to adjust the situation in which the contract cannot be performed due to force majeure.Finally,Article 121 of the Contract Law is excluded from the contract for the application of fault liability.In this way,it can avoid most of the abuse of Article 121 of the Contract Law.