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Research On The Systematization Of Legal Remedies For Contract Deadlock

Posted on:2021-03-11Degree:MasterType:Thesis
Country:ChinaCandidate:T ZhaoFull Text:PDF
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Systematization is one of the core issues in the formulation of civil code,including the internal system of values and principles and the external system of rules arrangement,aiming to achieve a unified legal order.When the contract cannot be performed,the breaching party claims to terminate and the observant party claims to continue to perform,and the contract may be in deadlock.The conditions and ways for the breaching party to terminate the contract are not suitable for such innovative provisions.The interpretation path of the contract law system can also make the law better respond to judicial practice.Based on Article 110 of the Contract Law,combined with Article 533 of the Civil Code(Draft),that is,by improving the system of impossibility of performance,risk burden allocation rules and the system of situation change,as well as the interpretation of the people's Court on the deadlock of contract,the deadlock of contract can be solved.When a contract cannot be enforced,the legal effect of the termination of the contract does not necessarily occur.The relationship between rescission of contract and actual performance is not "either or" in nature.The parties may choose other legal systems to break the deadlock of contract.When the performance cannot be fulfilled,the observant party can choose to let the defaulting party bear other forms of liability for breach of contract.Logically speaking,it is not necessary to terminate the contract if the performance cannot be performed.Contrast analysis of different schemes to resolve the deadlock of the contract,mainly including the termination based on the breaching party's right to terminate,the termination based on impossibility to perform,and the termination based on efficiency.Systematic analysis is the best way to solve the problem of contract deadlock.At the same time,"efficiency breach of contract" is difficult to become the legitimate theoretical basis for the defaulting party to apply for the termination of the contract.The value purpose of the theory is single,and efficiency can not really promote the maximization of wealth.From the point of view of efficiency breach and China's contract law system,it is inconsistent with the main value pursuit of China's contract law and is inconsistent with China's continued performance as the primary means of relief.The systematic explanation also needs to limit the termination of the contract of the defaulting party.If the purpose of the contract fails due to the failure of performance,the high cost of performance or the difficulty of compulsoryperformance,and the breaching party has no subjective malice,the breaching party can be allowed to sue for rescission of the contract.To solve the contract deadlock,we need to return to the internal system of law and improve the external system path.From the perspective of contract law system,it can also achieve the effect of breaking the contract deadlock from the position of the breaching party.In case of Article 110 of the contract law,the parties are allowed to apply for modification or termination of the contract.In order to protect the interests of the observant party,the breaching party shall bear the liability for breach of contract.The increase of "renegotiation obligation" in changed circumstances system not only encourages transaction,but also embodies the respect for freedom of contract.If the law expressly stipulates that the breaching party terminates the contract,it will inevitably cause the isolation of concepts and systems,the system will be too cluttered,and the value conflict will be exacerbated.The legal system has never been a one-way development process,but an organic and integrated development with hierarchy,systematization and scientificity.It is not a system to introduce new provisions to solve individual cases,nor a contract legal system.
Keywords/Search Tags:contractual deadlock, application for contract termination by the defaulting party, efficiency breach, impossibility of performance, changed circumstances
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