The Principle Of Breach Of Contract In WTO And Contract Law

The contract law of People's Republic of China, which came into effect in October 1, 1999, is much richer and changed than the original economic contract law, foreign economic contract law, and technical contract law, and has the characteristics of legal economy.

The liability for breach of contract is one of the most important parts of the contract law.

The principle of liability for breach of contract is the premise to explore the liability for breach of contract.

From the new provisions of the contract law, we can see that the principle of liability for breach of contract in the Chinese contract law system is expanding.

I. The Perplexity of the principle of fault liability

It should be admitted that the principle of liability for breach of contract in our original contract legislation is in essence the principle of fault liability.

The twenty-fifth provision of the original economic contract law stipulates: "because of the fault of one party, the economic contract can not be fulfilled or not fully fulfilled, and the fault party shall be liable for breach of contract. If the fault of both parties is the fault of both parties, the two parties shall bear their respective liabilities for breach of contract according to the actual situation."

This provision clearly defines the premise that the fault bears the liability for breach of contract, and it is not liable for breach of contract without fault.

But after that, China's foreign economic contract law and the technology contract law did not negate the principle of breach of fault liability, but they did not stipulate that the fault is the premise of liability for breach of contract.

We find that there are certain differences in the principle of liability for breach of contract between the continental law system and the Anglo American law system.

China's early contract legislation has unconsciously adopted the principles of traditional continental law system.

From the perspective of the evolution of the concept of rule of law in the world, there are certain shortcomings in the original principle of imputation.

(1) the change of the doctrine of liability fixation in the continental law system.

Although the traditional civil law system adopts the principle of fault liability for breach of contract, recently, especially in the post industrial society, this principle has been affected by the doctrine of liability fixation of contract breach in Anglo American law system. Its performance is that it has stepped from fault liability to "presumption of fault" principle, that is, the fault liability is based on the proof of the contract keeping Party, while the "presumption of fault" is that the breach party can not prove its fault without fault and should be liable for breach of contract.

The effect of the burden of proof replacement is not merely the pposition in the sense of procedural law, but also the expansion of the scope of liability for breach of contract.

The evolution of the principles of contract legislation in the continental law system has inevitably affected the convergence of the principles of contract legislation in today's world, and China's contract legislation is no exception.

In spite of this evolution, the legislative principles have been blocked by traditional moral concepts, and even have been restricted to the inherent criticisms of the Anglo American law, such as the obligation to cause the parties concerned to deliberately investigate the parties without fault.

But the trend of world economic integration still leads us to make more rigorous legislative principles.

(two) the infiltration and influence of the principle of breach of contract in the Anglo American law system on world trade.

Although the continental law system repelled the Anglo American Law on the principle of attribution of contract breach, but since the rapid expansion of post-war trade, the principles of contract legislation in the Anglo American law system have entered the world economic cycle system from simple Anglo American law countries.

From the earliest GATT to today's World Trade Organization, the game rules of its adherence have inherited the contract principles of Anglo American law system.

By 1980s, the principle of strict liability for breach of contract had not been applied in the world trade system. The United Nations Convention on Contracts for the international sale of goods, the general principles of international commercial affairs and the principles of European Contract Law adopted this standard comprehensively.

To some extent, this is the challenge of international economic and trade rules to China's legislative principles.

If we still adhere to the existing moral principles (in fact, this moral code is only a belief), it will be difficult to integrate into the world trade system, which is extremely detrimental to the development of China's market.

Facing the situation of joining WTO, we have to learn from the common law system's principle of contractual breach of contract.