Study On The Applicable Rules Of "Excessively High Performance Cost"

China’s "contract law" has adopted the traditional practice of the civil law system in the way of liability for breach of contract.But,in practice,continued performance frequently be a certain obstacle.In this regard,the practice of the contract law of our country is to set up the exclusions for continued performance in article 110.As an important exclusion for continuing to perform,"excessively high cost of performance" is only a few words,which is too broad.It is not only controversial in the academic circle,but also has many problems in the application of judicial practice.Through the research on the typology of cases in which the rule of excessively high cost of performance is applied in judicial practice,we conclude that there are mainly three problems in the application of the rule of excessively high cost of performance.Second,there are different views on the identification standard of excessively high performance expenses.Third,the legal effect of excessively high performance expenses is not clear.For carrying out "the cost of the performance of the cost,by typing was studied for the judicial practice,we think that in addition to the usual consider money cost,time consumption,costs and expenses,remedial performance cost labor but should not include cost of court supervision and execution,the performance of the basic costs and because of a third person involved in the cost of.The basic criterion for determining the exorbitant performance cost is to compare the performance cost with some kind of benefit.To perform cost comparison object,has the following three views: one is to the debtor to perform cost compared with the interests of the debtor performs,the second is the debtor performs cost compared with the fulfillment of the contract the parties interests,three is the fees for the implementation of the debtor and the creditor benefits for performance comparison,the cost for the implementation of the debtor and the debtor ignored in comparison with the performance of the interests of creditors’ interests,goes against the principle of good faith in civil law,easy to mix with the principle of changed circumstances.However,comparing the performance cost of the debtor with the performance benefit of both parties of the contract,taking "efficiency breach" as the basis of its legitimacy,is not in line with the current judicial practice in China.By comparing the performance cost of the debtor with the performance benefit of the creditor,the purpose of signing the contract is protected and the interests of the creditor are effectively safeguarded.As for the extent to which the debtor’s performance cost is higher than the creditor’s performance benefit,30% is appropriate in combination with the contract law system in China.However,in judicial practice,in addition to the basic criterion for determining that the debtor’s performance cost is higher than the creditor’s performance interest,there are other factors affecting the determination of excessive performance cost,such as the debtor’s imputability,the trust interest between the parties,and the damage to the public interest caused by continued performance.These influencing factors may exist in individual cases at the same time,so we need to weigh and determine under the consideration of various influencing factors,take the performance cost of debtor is higher than the performance benefit of creditor as the basic criterion,and take other influencing factors into consideration to revise it.As for the legal effect of the application of the overpayment rule,its direct effect is to exclude the creditor’s right of continuous performance claim,which is not controversial in the academic circle.The indirect effect may be that the debtor bears the liability for damages instead of payment and the creditor exercises the legal right to terminate the contract.One of the most controversial issues in the academic circle is whether the debtor has the right to terminate the contract when the creditor refuses to terminate the contract.The author believes that the breaching party should not be recognized as having the right to terminate the contract.Then how to solve the "contract deadlock" caused by the creditor’s failure to exercise the right to terminate the contract?The author thinks that we can introduce the system of judicatory discharge and discharge through judicatory judgment.But for the judicial relief,we must restrict,mainly has the principle of good faith limits,the limit on the interest measure and the limit on the judicial procedure.