簡論我國違約責(zé)任形式之協(xié)調(diào)適用（On the coordination and application of the form of liability for breach of contract in China）VIP

1、簡論我國違約責(zé)任形式之協(xié)調(diào)適用（On the coordination and application of the form of liability for breach of contract in China）On the coordination and application of the form of liability for breach of contract in ChinaThe form of liability for breach of contract stipulated in the contract law of China mainly include

2、s continuing performance, compensation for damages and breach of contract damages,A deposit, contract, etc. How these liabilities are applied is not only in accordance with the legislative intent, but also in conformity with the lawThe coordination between them is related to whether the contract jus

3、tice can be realized in the judicature. Therefore, it is necessary to advanceLine research.The author believes that the form of liability for breach of contract can be summed up in four modes: 1.That is two or more than two kinds of liability for breach of contract form and use, the other party can

4、also require the defaulting party to bear the numberLiability for breach of contract (2), choice model. The two kinds of liability for breach of a similar nature, the other party to choose such breach of contract.Any party shall not be held liable for breach of contract: 3. Absorption mode. That is,

5、 the existence of two forms of responsibilityAbsorption relationship, when such liability can cover other forms of liability, other liability is no longer applicable. OneLike, big absorption, small, heavy absorption light; 4, exclusion model. That is, mutual exclusion between two kinds of liabilitie

6、s for breach of contractIf the shield adopts such breach liability, it is absolutely impossible to adopt the liability of breach of contract. This model and choice moduleThe phase approximation can be incorporated into the selection model. But this model also has some characteristics, mainly respons

7、ibility formType of contradiction, the other party may not put forward at the same time, no matter what kind of legislation have adopted this mode not possibleException. Therefore, the model is single. The author combines the above model, the following discussion of our contractOn the coordination a

8、nd application of the forms of liability for breach of contract in the law.I. continue to performThe line is our country to contract law formulation theory is also called the actual performance, specific performance,Specific performance, often referred to as actual performance. This is a common and

9、common form of liability for breach of contract.Generally applicable to monetary obligations.Continued performance can be used in conjunction with compensation for losses and between the two. When the other party for breach of contractWhen the parties continue to perform, they may also require the d

10、efaulting party to make compensation for the losses caused by the breach of contract. CompensationThe scope includes both direct and indirect losses. In this regard, the academic circles should undoubtedly discuss DContinued performance and termination of contract can not be used together. Because c

11、ontinued performance requires the defaulting party to continue its performanceThe obligation to perform shall continue to maintain the contractual relationship; while the termination of the contract requires the defaulting party to no longer fulfil its contractual obligations,Both the lifting of the

12、 front and the termination of the contract are aimed at the elimination of contractual relations. Therefore, the two aspectsMutual contradiction and antagonism can not coexist in logic, and exclusion mode is the only choice.Continue with the deposit and use it. There is a lot of controversy in this

13、field. I believe that due to depositThe separation of gold deposit, and a contract breach deposit, cancellation deposit, so whether and continue to perform with,Can not be generalized. A deposit and deposit is applied to a covenant and a stage, and continue to perform the applicationIn the contract,

14、 performance of the former on the principal contract, so continue to perform and a deposit,The contracted deposit cannot be merged and applied, and the relations between the two parties are contradictory and antagonistic. Deposit if applicableThe penalties indicate that the offer has not been accept

15、ed; if the applicable penalty is stipulated, the contract is indicatedNot yet established or effective, and there is no basis for performance of contractual obligations.Therefore, the two nature of the deposit and continue to apply, can only use exclusion model. Cancellation depositThe premise is th

16、at the contract has been dissolved, and it has been discussed that the rescission of the contract and its continued performance are not applicableThe cancellation of the deposit and the continued performance are excluded in its application. The default deposit can be continued in principle,But to di

17、stinguish between breach of contract. When a general default occurs, the default deposit can be continued and used onlyThe penalty for earnest money is applicable in proportion to the performance. The key is that when the formation of a fundamental breach of contract, the deposit penalty may beFor t

18、he interpretation of the Supreme Peoples Court on Several Issues concerning the application of the guaranty law of the Peoples Republic of China120th, paragraph first), but can it be applied again? The author believes that one of the fundamental breachAn important sign is the purpose of the contract

19、 fails if the contract for the non breaching party has no meaning, then the contractShould not be fulfilled, which often lead to the dissolution of the contract. In the case of rescission of the contract, the penalty for the deposit shall applyContinued performance is not applicable. But the content

20、 of the obligation is an exception to the payment of money and debt.Chinas contract law establishes the system of liquidated damages, and admits that liquidated damages have dual functions of compensation and punishment,Mainly reflects the compensation. This is consistent with the legislation of civ

21、il law countries.As to whether the liquidated damages and the continued performance can be used and accepted by the academic circles, it is generally considered that they can not be used together. Unification of ChinaThe same law 114 also abandoned the economic contract law 31 can be used attitude,

22、and civil law countries legislationTend to be consistent。 That makes sense. First of all, the breach of contract in the continental law system mainly reflects the compensation function,In the case can continue to perform, fulfill the observant partys benefit to be realized, without causing other dam

23、ageIf you lose, you dont need compensation; if there are any other losses, you can make it through claims for damages. Secondly，The civil law system is deeply affected by the Rome law. The Rome law divides the liquidated damages into the liquidated damages for the replacement of the original debtsAn

24、d cannot replace the liquidated damages for the performance of the original obligations. The liquidated damages for the replacement of the original debts cannot be compared with those of the original debtsCombination of row and row. There are exceptions, of course, when the liquidated damages are sp

25、ecifically scheduled for delay, the two can be used together(article 114th, paragraph third of the contract law). Because the liquidated damages at this time can not replace the default performance of the original debtGold is punitive.The relationship between liquidated damages and damages is embodi

26、ed in the absorption relationship. That is, liquidated damages are higher than damagesWhen the gold is liquidated, the liquidated damages shall be absorbed and the damages shall be higher than the liquidated damages, and the damages shall be absorbed and liquidated damages.Of course, the other party

27、 has suffered actual loss to prove. Some people think that the two also show their relationship.When the penalty for punitive damages, the other party can be liquidated damages and damages to the defaulting party at the same timeProposition. In this regard, I think this view is wrong. The 114th clau

28、se of the second contract law shows that when the contract is liquidatedIf the party has the right to request a change in the amount of the liquidated damages if it is lower than or exceeds the actual loss, the party who changes the contract shall have the right to change the amount of the amount of

29、 the liquidated damagesThe actual loss is based on the reference standards. The quality of breach of contract is reflected below and above the limit,When the loss is lower than the actual loss, the claim is raised to the level of the loss, and the compensatory payment of the liquidated damages remai

30、ns trueJokin excessively higher than the losses, damages not only embodies and reflects the appropriate compensation, punitive.Therefore, it is not because of the difference in the nature of liquidated damages that the change is applicable to the compensation for losses.Liquidated damages and deposi

31、t in the nature of relatively similar, have guaranteed the performance of debt functions. So, IState contract law 116 stipulates that the parties have agreed liquidated damages, but also a deposit agreement, the other side of a breach of contract, the other partyYou may choose the applicable liquidated damages or deposit terms. Therefore,