On The Perfection Of China’s Fundamental Breach Of Contract System From The Perspective Of Comparative Law

The system of fundamental breach of contract originated in England.As a form of breach of contract which can result in the right to rescind the contract,it has been recognized in many countries through a series of international laws.Although many countries in the civil law system and the common law system do not use the concept of fundamental breach of contract,they more or less use the substanceadopts both subjective and objective elements,that is,the seriousness and predictability of the consequences.It restricts the determination of CISG,fully protects the actual performance of the contract,and prevents the abuse of the right to terminate the contract.Although the contract part of our country stipulates the similar content of fundamental breach of contract,it does not clearly put forward the concept of "fundamental breach of contract",and there are also some disputes on the constitutive requirements of fundamental breach of contract in our academic circles.Fundamental breach of contract refers to the serious breach of contract that one party’s delay in performance of the debt or other breach of contract will lead to the failure of the other party’s contract purpose.As far as the constitutive requirements are concerned,the disputes in the academic circle are mainly about whether the constitutive requirements of fundamental breach of contract should be judged objectively or both,the purpose of the contract in the objective criteria,and when to foresee the consequences of breach of contract in the subjective and objective criteria.At the same time,there are many disputes about the scope of the fundamental breach of contract.For example,whether the relevant content of the fundamental breach of contract system should exist in a provision or in its related provisions.If it should exist in its related provisions,how to clarify the relationship between these provisions? The author thinks that the fundamental breach of contract system in China should learn from the Convention On the one hand,it limits the abuse of the right to rescind the contract.On the other hand,it can protect the interests of the parties to a certain extent and maintain the security of the transaction.At the same time,the predictability standard can also help the judge deal with the case flexibly,making the case more reasonable and legal.At the same time,the fundamental breach of contract is limited in the fourth item of article 563 of the civil code.For other breach of contract which is similar to the serious consequences of the fundamental breach of contract,it can continue to be stipulated in the name of the corresponding breach of contract,but its content is still not divorced from the corresponding breach of contract,which can be very effective It is good to distinguish the fundamental breach of contract from other breach of contract,so as to avoid unnecessary confusion.This paper starts with the problems existing in the practice of fundamental breach of contract system in our country,analyzes and evaluates the relevant provisions of fundamental breach of contract in civil law system and common law system countries,as well as the double elements of the severity and predictability of consequences stipulated in the Convention,and recognizes that the predictability standard has various benefits such as operability,which should be adopted.At the same time,it explains the legal consequences of fundamental breach of contract,clarifies the relationship between fundamental breach of contract and termination of contract,and puts forward its own views on whether the exemption clause is applicable in the case of fundamental breach of contract.This paper puts forward the ought to be analysis of the system of fundamental breach of contract in our country,that is,to recognize the necessity of adding subjective elements,to clarify the scope of application of fundamental breach of contract,to refine the identification standard that the purpose of the contract can not be achieved in the judicial interpretation,and to improve the effectiveness of the exemption clause of fundamental breach of contract.