Introduction And Construction Of Substitute Transaction

The important goal of the remedy of contract law is to protect the expectation interests,that is,to make the aggrieved party in a situation that it should have if the contract was actually performed by filling in all kinds of damages suffered by the other party for breach of contract.Therefore,lots of countries or international model laws have established the substitute transaction as an independent remedy for breach of contract.Substitute transaction is not only an independent remedy,but also a method to calculate the expected interest damages.First of all,it is subordinate to the remedy of damages,which belongs to the second level.Secondly,once the aggrieved party chooses to carry out the substitute transaction remedy,it can only obtain the damages based on the substitute transaction price.In this sense,as the calculation method of damages,it exists side by side with the market-price compensation method.The basis of its legitimacy lies in the principle of expected interest damage compensation.In the trial practice of our country,there are mainly two kinds of relief: damages compensation based on market price and actual performance,which have not been able to achieve the goal of contract law in practice,the necessity of introducing substitute transaction system in China is demonstrated,such as the closest to the realization of the expectationinterests,the more effective transformation of the burden of internal risks in the market and the more simple and convenient proof.the feasibility of introducing substitute transactioninto Chinafrom three aspects: the legal basis of the agreement between substitute transaction and the goal of contract,the economic basis of the increasingly prosperous trading market which is easy to cover or resell,and the practical basis that substitute transaction has become a universal relief way.The fourth part is also the most important part of this paper,which specifically demonstrates how to introduce and build alternative trading system in China.First of all,it analyzes the elements of the substitute transaction system.One is that the substitute transaction can only be carried out after the aggrieved party issues the notice to terminate the contract;the other is that the aggrieved party actually carries out the transaction to replace the original contract object;the third is that the substitute transaction carried out is reasonable.To judge whether a transaction is reasonable or not,we should start from the facts of the whole case and comprehensively consider all aspects of the whole transaction,including time,price,place of transaction and attributes of substitutes.Secondly,the paper discusses the application of substitutetransaction after its establishment.One is that the substitute transaction is not compulsory,and the aggrieved party can choose the remedy method according to its actual situation;the other is that the substitute transaction is not only applicable to the contract of sale of goods,but also to the contract of sale of services,and there should be no difference between them.At last,it demonstrates how to calculate the amount of damages after the aggrieved party chooses the substitute transaction remedy.