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On The Judicial Determination Standard Of Fundamental Breach Of Contract

Posted on:2021-02-01Degree:MasterType:Thesis
Country:ChinaCandidate:C T PanFull Text:PDF
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Fundamental breach of contract,which originated from England common law,is an important system in the field of contract law.Its influence is reflected in two major legal systems and a series of international treaties.The Chinese Contract Law also adopted the substantive meaning of fundamental breach of contract in Article 94.However,due to abstract expression and lack of relevant judicial interpretations,the application of fundamental breach of contract in judicial practice is not so satisfactory.In this regard,this article attempts to explore the shortcomings of the standard for the determination of fundamental breach of contract from the perspective of empirical analysis,and through the reference study of relevant legislation models outside the territory,put forward specific suggestions.According to the results of empirical analysis,the following five problems still exist in the application of the judicial determination standard of fundamental breach of contract.The first is that the lack of core legal concepts has led to confusion and deviation in the understanding of judges and parties.This article believes that the concept of fundamental breach of contract should be incorporated into the law as soon as possible on the basis of drawing on the article structure of the United Nations Convention on Contracts for the International Sale of Goods and the views of scholars.The second is that the rules for determining the purpose of the contract are unclear.This can be considered from three levels: firstly,the contract agreement takes precedence,secondly,the comprehensive judgment based on the contract type,contract content,and contract results,and finally,the determination is made by the rational third-party standard under the same conditions.The third is that the court disputes whether the predictable standard is applicable.The attitude of this article is that the foreseeable standard should be explicitly prohibited,because the foreseeable standard itself is set to control the risk of international trade,and there is no need to apply it in domestic trade.At the same time,the standard lacks operability in judicial practice,and the utilization rate is low.The fourth is that Article 94,Item 3 is virtually useless.The root cause of this problem lies mainly in the fact that the law is too rough.Therefore,it is necessary to further refine the standard of judicial determination of fundamental breach of contract,in particular,all the forms of breach of contract shall be clearly stipulated.The fifth is that the determination of fundamental breach of contract is too cautious and conservative in judicial practice.This is mainly because different judges have different grasps and measures on the value orientation of this system.This article believes that under normal circumstances,the judge should give priority to the fair value of the fundamental breach of contract,that is,to protect the interests of the contracting party first.In special cases,fair value gives way to efficiency and safety values.
Keywords/Search Tags:fundamental breach of contract, contract purpose, forms of breach of contract, value orientation
PDF Full Text Request
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