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Responsibility to terminate the contract breach

Author: LiWenHua
Tutor: DuanKuang
School: Fudan University
Course: Legal
Keywords: Rescission Penalty Damages Punitive penalty
CLC: D923.6
Type: Master's thesis
Year: 2009
Downloads: 224
Quote: 1
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Abstract


In the traditional theory of contract law, rescission and responsibility for the breach of contract are two independent relief system. Thus, for a long time, the specialized research of rescission and responsibility for the breach of contract are mostly from their own perspective of the system for. However, rescission may also be due to the breach to the contract by a party, in the level of judicial practice, can the rescission due to breach of contract of a party apply with the form of liability ,such as penalty and damages? Can penalty apply with damanges at the same time? With these questions, this article attempts to combine the relevant case on this issue explore a number of shallow.In chapter one, the author investigates the problem whether penalty can apply with rescession. In judicial practice, the courts have much confusion on this problem. Similar cases, the Court may deal with totally different results. The author points out from the penalty system, the theoretical basis, that the penalty clause in the contract continues to apply after rescession ,according to "Contract Law" Article 98 "rights and obligations of the contract termination will not affect the terms of settlement and the effectiveness of clean-up."In chapter two, the author mainly explores whether the non-defaulting party can seek compensation for losses and how to determine the issue of damages after rescession. The author first analyzes the scope of damages for breach of contract and the method of calculating, and then based on the effectiveness of resecssion points that the scope of damages of the defaulting party includes only direct loss but loss of benefits.In chapter three, the author mainly explores whether the non-defaulting party can request for penalty and damages at the same time after rescession. I first analyze national legislation on the nature of penalty, then analyze the nature of penalty of contract law in our country, then point out that whether penalty can co-exist with damages shoulbe distinguish punitive penalty and compensational penalty,punitive penalty can co-exist with the damages, and further discussed how to recognize punitive damages in practice.

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CLC: > Political, legal > Legal > Chinese law > China and France > Contract Law
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