Empirical Research On Incomplete Performance Of Contract And Its Burden Of Proof

Incomplete performance of contract,also known as incomplete debt performance,means that although the debtor has performed the debt,its performance does not comply with the provisions of the contract.Scholars mostly believe that the performance of contractual obligations does not conform to the agreement in Article 577 of the Contract Volume of the Civil Code(Article 107 of the original Contract Law)is the incomplete performance of contract.The distribution of burden of proof for incomplete performance of contract in our legislation is lack of explicit provisions.Through the study of 202 cases,it is found that there is a return of the principle of imputation from strict liability to fault liability in the logic of judicial judgment.The courts often do not make a clear distinction between the types of incomplete performance of contract in judgment and reasoning,and usually directly identify it as liability for breach of contract.In judicial practice,there are many problems in the case of incomplete performance of contract,such as the non-uniform distribution of the burden of proof of the constituent elements,the differentiation of the standard of proof,the confusion of the norms cited in the judgment,the confusion of the elements of the occurrence of rights and the elements of the obstacles of rights,and so on.By setting the identification standard of incomplete performance of contract,reasonably distributing the burden of proof of each constituent element of incomplete performance of contract and clarifying the proof process of incomplete performance of contract,we can standardize the confusion of judicial practice under the condition of incomplete performance of contract and improve the incomplete performance of contract and its burden of proof.The full text is divided into four parts:The first part is the basic theory of incomplete performance of contract and its burden of proof.Incomplete performance of contract means that although the debt is performed,the performance is not in accordance with the contract.According to the type of damage caused,incomplete performance of contract can be divided into defective performance and injurious performance;According to the types of obligation violation,it can be divided into payment obligation violation and collateral obligation violation.The effective establishment of the contract,the debtor’s performance,the debtor’s performance not in line with the contract and imputability are the four elements for the incomplete performance of contract,among which imputability is the most controversial issue.Academic circles generally believe that the distribution of burden of proof should follow the normative theory,but it is necessary to clarify the burden of proof through the interpretation of substantive law norms.At the same time,we should also consider the purpose of legislation and other factors to determine the specific burden of proof.The second part is the empirical research on the current situation of incomplete performance of contract and its burden of proof in China.In the sample cases,property service contract disputes account for the highest proportion,followed by sales contract disputes.When deciding to assume the liability for breach of contract due to incomplete performance of contract,the court often separately invokes the provisions on defective performance in Article 582 of the Civil Code or Article 111 of the original Contract Law,and most cases were identified as incomplete performance of contract,but only 60% of the cases in which the breaching party assumed the responsibility for incomplete performance of contract.When allocating the burden of proof,judicial practice takes different allocation methods for the constituent elements of incomplete performance of contract.In terms of the principle of imputation,it is reflected in the return from strict liability to fault liability.The court often identifies the non-compliance of the performance of contract directly according to the liability for breach of contract,does not distinguish the specific types of breach of contract,and avoids the identification of the authenticity of the facts as unknown.The third part is the practical problems and causes of incomplete performance of contract and its burden of proof in China.Through the analysis of specific cases,it can be seen that there are some problems in China’s judicial practice,such as the non-uniform distribution of the burden of proof for the constituent elements of incomplete performance of contract,the differentiation of the standard of proof,the confusion of norms cited in the judgment,and the confusion of the elements of right occurrence and the elements of right obstacles.The reason is that at the level of substantive law,the legal provisions of incomplete performance of contract are not clear.At the level of procedural law,there is a lack of norms for the distribution of the burden of proof in the incomplete performance of contract.At the theoretical level,the academic circles have insufficient theoretical discussion on the incomplete performance of contract and its burden of proof.The fourth part is the suggestions on the improvement of the incomplete performance of contract and its burden of proof in China.First,set a clear standard for the identification of incomplete performance of contract.The determination of defective performance should not only be limited to quality defects,but also include the inconsistency of performance quantity,place and method;We should not only take the performance result as the evaluation standard,but also take the performance behavior as the recognition standard in the simple labor payment contract.It should clarify the relationship between the incomplete performance of contract and the defect guarantee liability of the object.The injurious performance shall be judged by whether there are other losses and whether there is a causal relationship between the loss and the defective performance.Secondly,reasonably allocate the burden of proof of incomplete performance of various constituent elements of contract.According to the normative theory,the burden of proof of the constituent elements of incomplete performance of contract should be borne by the party claiming the right,but when the distribution of evidence is uneven and it is difficult to prove,it can be borne by the other party.In the category sales contract,when the buyer requests the redelivery of a flawless subject matter,the burden of prove that the performance of contract does not meet the agreed requirements shall be borne by the party liable for performance.Introduce the elements of imputability,and the party liable for performance shall prove that it is not at fault or has force majeure or other legal and agreed non imputable causes.Furthermore,clarify the proof process of incomplete performance of contract.The claimant of incomplete performance of contract shall provide the preliminary evidence of the effective establishment of the contract,the non-compliance of the performance with the contract,the loss,the causal relationship between the defective performance and the loss,so that the judge can form the psychological evidence of inner bias,and the other party can put forward counter evidence to refute it.After the proof and cross-examination of both parties,when the judge has formed the inner conviction of bias towards the claimant,the party who has the obligation to perform may prove that it is not imputable.