| Force majeure is an important legal institute not only in a contract law.This legal concept originating from Roman law was adopted by countries with Continental law and AngloAmerican law system,but both legal systems,even countries of the same law system developed different force majeure rules.Force majeure can have in different countries different meaning,constitutive conditions,range of application and legal effects.As a result of its high degree of abstraction,it is not only difficult to interpret,but also to specify its limits and its relation to similar legal institutes.Besides,force majeure is not easy to grasp due to the variety of events and factors possibly constituting it and thus affecting a contract fulfillment.The goal of the Thesis is to make a comparison between force majeure according to the law of the People’s Republic of China and the law of the Czech Republic.Author conducts a research and summarizes relevant laws,jurisprudence and judicial practise of force majeure in contract law.Using a comparative method,author compares force majeure with the emphasis on its legal effects based on the law of aforesaid countries and summarizes the most significant differences between them.Author uses a horizontal comparative method to conduct the comparison.Chinese and Czech literature,periodicals,articles and court judgements make valuable sources for the Thesis.Author processes and introduces the main thoughts relevant to the topic and make comments on them,introduces possible solutions regarding the topic and provides improving opinion.Based on the comparative results,Author points out some issues of the institute of force majeure in Chinese Contract Law and the Czech Civil Code and in the evaluation uses the relevant stipulations from both laws as a mutual reference and uses experience of two countries in order to fill legal loopholes and to provide with improving opinions regarding the institute.The first part of the Thesis analyses and compares constitutive elements of the force majeure in the Chinese and Czech law and provides their evaluation.The Contract Law in Art.117 adopts the “doctrine of three elements” whereas the liability exception stipulated in Art.2913 of the Czech Civil Code mostly consists of different elements.The practical effect is the inclusion of a certain type of behavior of third parties into the range of force majeure by the Czech Civil Code,whereas the Contract Law considers the responsibility for accident caused by third parties to be borne by the debtor.The interpretation of the element “unsurmountable”also differs,which influences the practical application of the institute as a whole.The second part refers to the comparison between the force majeure and other relevant institutes under the law and legal theory of the two countries,in order to delimit the institute and to distinguish it from hardship,accident or burden of risk.The border among these institutes is very unclear and can cause legal uncertainty and application problems.From the procedural point of view,it is crucial for the petitioner to choose correct institute in order to formulate the petit correctly.The third part is the focal point of the thesis.It firstly summarizes legal effects of the force majeure in a theoretical way and further analyses particular legal effects according to the Chinese Contract Law and the Czech Civil Code.The Thesis divides legal effects into the effects on contract effectiveness,the exception from liability effects and the risk allocation.Despite the Chinese Contract Law and the Czech Civil Code both adopt the strict liability system,but the practical application of exceptions from liability differs.Moreover,legal effects of the force majeure event on the contract effectivity differs as well.The Czech Civil Code adopts the system of automatic termination of the obligation,whereas the Contract Law adopts the contract termination system based on an expression of intent,which allows contract parties to decide on the contract effectiveness accordingly.Author points out advantages and disadvantages of both systems and discusses limitations and burdens of risk borne by contract parties. |
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