An Empirical Study On The Impossibility Of Performance

With the development of economy and the constant changes of social forms,the problems of impossibility of performance emerge one after another,which also shows that there is more space for discussion and research.There is no stipulation of impossibility of performance in our country,many cases with the same case are judged differently in practice.In academic theory,there are also many disputes about the effectiveness and legal effect of impossibility of performance.The author discusses two major issues,namely,the validity of the contract of initial impossibility and the legal effect of afterward of impossibility.As for the effectiveness of the initial impossibility,the traditional theory of the invalidity of the initial impossibility has been overturned by the modern theory.The author thinks the validity of the contract with impossibility of performance is the general principle,and some special cases need to be treated differently.For a civil contract with an administrative act as the agreed content,such a contract cannot be deemed to be valid in order to avoid the inseparability between the administrative act and the civil act and the impact on the independence of the administrative act.And the contract that has no legal sense or social sense also should not admit its effectiveness.In addition to the general situation,we should try to agree with the effectiveness of non-payment.For the legal effect of impossibility of performance,our country should discuss in different situations.In the case of non-performance caused by the debtor,it is obvious that the debtor shall be liable for compensation,and the creditor has the right of claim for compensation and may terminate the contract.In the case of non-payment caused by the creditor,the debtor's payment obligation shall be excluded,the payment risk shall be borne by the creditor,and the debtor shall enjoy the right to treat the payment claim.In the case of non-payment caused by reasons other than the parties,the debtor's payment obligation is exempted,the creditor's payment obligation is also exempted.However,if the creditor wants to exercise the right of claim for compensation,he must pay for the treatment first.In short,it is necessary to make systematic provisions on the problem of impossibility of performance,so as to improve the debt law system.This article is divided into four parts.The first part mainly introduces eight cases related to impossibility of performance,which leads to two major problems in practice,including the disputes about the effectiveness of impossibility of performance and complicated legal effects.The second and third parts respectively analyze and discuss these two problems,and respond with cases.The fourth part based on the foregoing analysis,clarifies and systematizes the non-payment system and summarizes the whole paper.