大陆法系与英美法系违约责任问题的比较研究

1、广东东软学院本科毕业论文题目：A Comparative Study on the Liability for Breach of Contract between Continental Law System and Anglo-American Legal System大陆法系与英美法系违约责任问题的比较研究摘 要违约责任制度是合同法有效发挥其调整商品流转关系作用的重要手段。由于不同法系各有其特点，从法律文化的传统来分析，各个国家的法律对于违约责任有不同的特点和侧重点，大陆法系国家构造出合同债务和责任的关系理论，英美法系国家则更重视违约责任补救手段的体系构建。本文主要内容分三部分：第一部分

2、，对大陆法系与英美法系违约责任制度的历史回顾与现状的比较分析；第二部分，分别讨论违约责任制度的概念和范围，对两大法系的违约行为形态进行比较研究；第三部分，对两大法系的违约行为、违约责任的救济措施进行比较研究并提出观点。本文采用比较法的方法，通过比较两大法系以及国际公约和惯例的违约责任内容，学习研究、分析具体问题，以得一些规律性的结论并提出观点。关键词：违约责任；比较研究；大陆法系；英美法系ABSTRACTThe breach of contract liability system is an important means by which the contract law can effe

3、ctively play its role in adjusting the relationship of commodity circulation. As different legal systems have their own characteristics, from the perspective of the tradition of legal culture, the laws of various countries have different characteristics and focuses on liability for breach of contrac

4、t. Civil law countries have constructed the theory of the relationship between contract debt and liability, while countries in the Anglo-American law system have paid more attention to the system construction of remedies for breach of contract. The main content of this article is divided into the fo

5、llowing three parts. The first part is a comparative analysis of the historical review and the present situation of the liability system for breach of contract between the Continental Law System and the Anglo-American Legal System. The second part discusses the concept and scope of the liability sys

6、tem for violate a treaty, and conducts a comparative study on the forms of breach in two major legal systems. The third part is a comparative study of the remedies for breach of contract and liability for breach of contract between the two major legal systems, and puts forward viewpoints on it. This

7、 paper uses the method of comparative law to study and analyze the specific problems by comparing the contents of liability for breach of contract in Continental Law System，Anglo-American Legal System, international conventions and practices, so as to obtain some regular conclusions and put forward

8、opinions.Key words：Liability for Breach of Contract；Comparative Study；Continental Law System；Anglo-American Legal SystemiiiContentsINTRODUCTION2CHAPTER I HISTORY AND STATUS4CHAPTER II COMPARATIVE ANALYSIS OF VARIOUS CONCEPTS OF BREAK RULES62.1 Form of Breach of Contract62.1.1 Form of Breach of Contr

9、act in Continental Law System62.1.2 Form of Breach of Contract in Anglo-American Legal Law System72.2 A Comparison of the Concepts, Contractual Obligations and Their Interpretations for Breach of Contract of Two Major Legal Systems8CHAPTER III REMEDIES FOR BREACH OF CONTRACT IN TWO LEGAL SYSTEMS103.

10、1 Remedies in Anglo-American Contract Law103.2 Remedies in Continental Law103.3 Remedies under Chinese Contract Law12CHAPTER IV FORMS OF LIABILITY FOR BREACH OF CONTRACT IN TWO LEGAL SYSTEMS144.1 Specific Performance144.2 Indemnification of Loss164.3 The Promised Indemnification164.4 Liquidated dama

11、ge17CONCLUSION20REFERENCES21ACKNOWLEDGMENTS22INTRODUCTION(1) Brief Introduction to Common Law System and Civil Law System Continental Law System and Anglo-American Legal System are two most important legal systems in the contemporary world. The Continental Law System is also called Roman Germanic la

12、w system, Roman law system, code law system and civil law system. It is a worldwide legal system based on ancient Roman law and represented by French Civil Code in 1804 and German Civil Code in 1900. The Anglo-American Legal System is also called the case law system, the English law system, the comm

13、on law system and the ocean law system. It is a worldwide legal system developed based on the British common law.(2)Overview of Liability for Breach of Contract The liability system for breach of contract is an important part of the validity of the contract, and it is very important for maintaining

14、market order and protecting the legitimate rights and interests of the parties. Liability for breach of contract, as an important measure to guarantee the realization of creditors rights and the fulfillment of debts, refers to the liability for damages and payment of liquidated damages that the part

15、ies should bear when they fail to perform their contractual obligations. Regarding the application of liability for breach of contract should reflect the principle of fairness and justice or efficiency. Many scholars believe that fairness and justice is the function and value basis of liability for

16、breach of contract. Fairness and justice require that the responsibility be compatible with the balance of violations of the law. This should not only reflect the sanctions for wrongdoing, but also fully compensate the victims for the losses. For different countries, due to the differences in legal

17、traditions and legal systems, there are obvious differences in the structure, specific systems, and status of the legal liability system. Civil law countries construct a theory of the relationship between contract debt and liability, and establish a liability system for breach of contract on a solid

18、 basis; while the contract law of Anglo-American law countries has the characteristics of case law, which makes its liability system for breach of contract display diverse and practical system of remedies for liability for breach of contract.(3) Purpose and Significance of Research Both Continental

19、Law System and Anglo-American Legal System attach much weight to the function of contractual obligations in contract law, and both of them have made clear provisions on the liability for breach of contract. The liability system for violate a treaty is legally reflected in the market economy. Under t

20、he trend of globalization, it has made modern economic developments requirements for breach of contract higher and higher, and the integration of the two major legal systems has become increasingly apparent. The rules of the two have penetrated and learned from each other. It is even a positive tren

21、d for contract law to develop towards unification, but in the traditional sense, there are still many differences between the two major legal systems. Therefore, it is still of theoretical value to make a comparative research on the forms, components and remedies of violate a treaty in Continental L

22、aw System and Anglo-American Legal System from the perspective of comparison, and still of practical significance to further understand the connotation of breach of contract in China and strive to build its efficiency.CHAPTER I HISTORY AND STATUSThe system of liability for breach of contract is a ki

23、nd of legal remedy for normal contractual relations and aims to restore the damaged contractual relations. When the commodity trading relationship generally adopts the form of a contract, in order to maintain the stability of social order, the state encourages the parties to conduct transactions in

24、accordance with the principle of good faith. The contract must be given mandatory force through legal means. Applicable to this, it is required to deal with violations of contract binding actions, which is obviously very important for maintaining contract discipline. Therefore, at least in theory, t

25、he liability system for breach of contract is a legal system that accompanies the contract system. Any legal system has its immature early history of development. With the development of society and the development of peoples ethics and civilization, many systems have shown their glorious existence

26、after the development and improvement of later generations. China is closer to civil law countries in terms of contract law origins. But empirically, the impact of Anglo-American law on Chinas current contract law is also significant. The scope of rights protected by traditional contract law is quit

27、e narrow. During the period of Roman law, the scope of protection of the contract law was limited to the scope of the subject matter of the contract. In the period of French civil law, the role of market factors has become relatively large, so the scope of protection of contract law has therefore be

28、en expanded. People have seen the role of contracts in constructing economic relations and the role of reflecting the credit relations. Up to now, the scope of interest protection of contract law is obviously different from before. The rapid expansion of the protection scope of contract law depends

29、on the development of credit system and the requirements of transaction security in the process of social development. “Remedies Precede Right” is a famous saying in English and American jurisprudence. What it shows is that the Anglo-American Legal System focuses on the realization of rights through

30、 remedial measures. In contrast, some civil law countries represented by Germany break down “debt” into “Schuld” and “Haftung” and pay more attention to debt. In the aspect of responsibility undertaking, Anglo-American law attaches great importance to the application of injunction, which is related

31、to the concept of using relief measures in Anglo-American law. In British and American Contract Law, the function of relief measures is embodied in two stages: one is to make a negative evaluation of the debtors breach of contract and ask the debtor to bear the consequences; the other is to prevent

32、the debtors possible further damage.In the application of actual performance, the Continental Law System tends to adopt the method of compulsory actual performance more widely, while the Anglo-American Legal System pays more attention to the application of compensation for losses. According to the p

33、erspective of the Continental Law System, the liability for breach of contract is only an extension of the debt relationship. The role of the liability for breach of contract system is to ensure that the realization of the debt relationship is guaranteed by the states coercive force. The Anglo-Ameri

34、can Legal System adopts the opposite attitude. It starts from the concept of relief law and believes that the point of departure for contract parties to participate in the contractual relationship is to obtain a certain benefit or profit. Common law emphasizes the economic analysis of legal norms, w

35、hile civil law emphasizes the analysis of moral concepts.CHAPTER II COMPARATIVE ANALYSIS OF VARIOUS CONCEPTS OF BREAK RULES2.1 Form of Breach of Contract The form of breach of contract refers to the categorization of break rules in the light of its property and characteristic. Although any form of b

36、reach of contract must takes the liabilities for breaking rules, it is still very important to determine the form of violate a treaty: first, the parties to the contract can opt the most expedient manner to remedy their rights according to violate a treaty; second, the form of breach of contract is

37、conducive to determine the duty of the breaching party; third, the determination of the form of breach of contract is conducive to the improvement of the contract rules.2.1.1 Form of Breach of Contract in Continental Law System Roman law in the classical period implemented the principle of objective

38、 liability. In the period of Justinian, contract liability no longer arises from the subjective faults of the parties due to non-performance of debts. In Roman classical law, the system of determining contract liability based on non-performance also became history.Germany basically established the b

39、reach of contract in the light of the provisions of Roman law. Before the establishment of German Civil Code, according to the interpretation of Roman law, the German jurists such as Mommsen and Windeschid put forward to divide the form of violating a treaty into impossibility of performance and del

40、ay in performance. The views of Mommsen and other scholars had the greatest impact on the establishment of German Civil Code, which divided the form of breach of contract into supervening impossibility of performance and delay in performance. The French Civil Code is also the main form of violate a

41、treaty with nonperformance and delayed performance.2.1.2 Form of Breach of Contract in Anglo-American Legal Law System Anglo-American Legal System pays more attention to how to eliminate the negative consequences of non-performance of debt. The Anglo-American law system traditionally adopts the dich

42、otomy to deal with breach of contract: either the condition is violated or the guarantee is violated. However, this simple dichotomy is not entirely suitable for various types of default situations. Therefore, in recent years, British courts have developed a new type of default through jurisprudence

43、, which is called “violation of intermediate clauses or anonymous clauses.” According to some jurisprudence of the British Courts, even if a clause in the contract is violated, it is only minor, and as long as it can be compensated by the method of damages, it is considered to be an intermediate cla

44、use. For example, in contract, the ship owners obligation to provide the charterer with a seaworthy vessel or to sail to the port of loading at an appropriate speed, and the clause that the master must act in accordance with the charterers instructions, have all been recognized by the British Courts

45、 as Intermediate clause. Unless the consequences of violating such clauses are so serious that they deprive the charterer of the benefits, he should have obtained in accordance with the charter party contract, the charterer has no right to terminate the charter party. In addition to the above breach

46、 patterns, some British scholars have combined the inherent traditions of British and American contract law and absorbed the practices of civil law countries to propose a new classification method. British scholar Devis believes that a party that fails to perform or indicates that it will not perfor

47、m its obligations under the contract is a breach of contract. This view divides breaches into present breaches and anticipatory breaches. The actual breach refers to the parties failure to perform their contractual obligations, including the three specific forms of non-performance, defective perform

48、ance and misrepresentation of the terms of the contract. Anticipatory breach refers to the breach of contract before the time limit for performance stipulated in the contract, that is to say, he will not comply with an agreement at that time by then.2.2 A Comparison of the Concepts, Contractual Obli

49、gations and Their Interpretations for Breach of Contract of Two Major Legal Systems A breach of contract refers to an act in which the parties to a contract fail to perform their contractual obligations in the light of the statute or the contract. The expression of the concept of violate a treaty ha

50、s some discrepancies between the two major legal systems. Common law scholars generally use the debtors breach of contractual obligations as a standard to define breaches. In civil law countries, people often use “non-performance” to describe situations which are similar to breach rules for civil le

51、gislation and theory. Breach of contract and non-performance are two interrelated legal terms with different meanings. The civil law system tends to adopt the concept of non-performance, while the Anglo-American law system usually uses the term that called breach of contract. The case law and doctri

52、ne of the Anglo-American legal system has always regarded contract law as an independent legal field, in which breaking rules is aimed at the breach of contractual obligations in terms. The countries of the civil law system regard the contract law as an integral part of the debt law in terms of legi

53、slation and doctrine. The debt law broadly includes the contract law, the tort law and the improper profit system. Nevertheless, as far as the contract law of the two legal systems is concerned, the actual difference between the contract of contract and non-performance is not significant. In my opin

54、ion, the definition is a general summary of a certain type of phenomenon or thing. Even if it is difficult to reflect all the characteristics of that type of thing or phenomenon, at least the basic attributes of them should be summarized as much as possible. Otherwise, a scientific definition of bre

55、ach of contract cannot be established. Although both Continental Law System and Anglo-American Legal System attach much weight to the function of contractual obligations in contract law, there are certain differences in the status of the two legal systems in treating contractual obligations. In term

56、s of contract obligations and contract types, the Continental Law System determines the contract obligations of the contract type, while the Anglo-American Legal System emphasizes the independent value of the contract obligations. From the point of view of the civil law system, different types of co

57、ntracts have different powers and obligations between the parties. This is obviously a view formed on the basis of the classification of contracts as established facts. The Anglo-American law system pays more attention to the relationship between the combination of obligations and the type of contra

58、ct. In fact, the judge is of greater importance to determining the relationship between the parties by determining the existence of a specific obligation. On the relevance between obligations under a contract and implied terms of a contract, the Continental Law System mainly relies on the interpretation of contract terms, and the Anglo-American Legal System mainly relies on the application of implied terms. Civil law systems tend to be resolved through interpretation of contract terms. To this end, the civil law system has created many rules for contr