Research On The Typology Of Specific Performance

Specific Performance is a way of liability for breach of contract as stipulated in China’s "Contract Law".The discussion on Specific Performance in theory and judicial practice mostly focuses on the nature of responsibility,value choice,judicial application and enforcement,etc.,and has not yet examined the responsibility of Specific Performance for breach of contract with a typed perspective.In order to safeguard the rights and interests of the parties and promote the implementation of the judgment,this paper is divided into the following five sections to analyze the types of Specific performance:In the first part,there are also problems in the judicial practice that the Specific Performance is expressed generically judicial and the content is vague.As a basis for implementation,the implementation of the judgment the decision has been carried out in such a way that the enforcement of the executive is weak,the implementation measures are not clear,and the execution mode is not determined.In recent years,the number of the Specific Performance of the decision has risen steadily,and the attitudes of different courts to the Specific Performance of the decision are not the same.The dilemma of execution of Specific Performance judgment is also becoming increasingly prominent.This section introduces the analysis of the difficulties achieved through the implementation of the “Shanbei 100 billion mineral rights case”,and introduces the analysis to the Specific Performance and solution to the difficulties of the Specific Performance of the decision.In the second part,there are the origin and necessity of the Specific performance.Firstly,by comparing the origins and development of the continuation of fulfillment,it is the starting point to compare the differences in the nature and status of the Anglo-American law and the civil law.Specific performance remedy for breach of contract in Continental law,and the status in the Anglo-American law is inferior to damages,but the equivalent remedy measures taken in the Anglo-American law that damages are not enough to make up for the losses.In China’s contract law,Specific performance is an important remedy for breach of contract,and has an equal status with damages and other remedies.Secondly,this part explores the necessity of Specific performance as a liability for breach of contract.the necessity of Specific performance is reflected in: based on the concept of "law lock" in Roman law,the contract should be strictly adhered to;the justification of efficiency breach,the inefficiency of efficiency breach and its violation of the principle of good faith;and the lack of other relief measures.In the third part,the meaning of the Specific Performance type.On the basis of he necessity of Specific performance,this part is based on the problems expressed in the Specific Performance in the system of judicial practice.To study the Specific performance from the system level and the judicial practice level will continue.At the system level,it can enrich the connotation of the Specific Performance.At the practical level,it can be convenient for judicial referees.Specific performance typed at the practical level can facilitate judicial decisions,reduce secondary disputes,limit judicial will,improve the certainty of referee content,and lay the foundation for enforcement.In the fourth part,the typed approach of Specific performance.In terms of methodology,this part summarizes and analyzes Max Weber’s "ideal type",Yatu Kaufman’s "things of matter" type theory and Karl Larenz’s type theory,and draws on and seeks to Specific performance typed Method and use this as a guide.In the fifth part,there are the types of the Specific Performance.This part is the focus and difficulty of this article.On the basis of the analysis and summary of the above five parts,the Specific Performance can be divided into the following: the Specific Performance of natural persons and the Specific performance of other subjects;according to the will of the subjects,the Specific Performance of intentional breach of contract and the unintentional breach of contract;according to the payment content,the payment contents can be divided into the Specific Performance of monetary benefits and the Specific Performance of non-monetary benefits;according to the performance mode,it can be divided into the Specific performance of the third person and without the third person;It can be divided into the Specific Performance of the loss of property rights and the Specific Performance of the loss of personal rights and interests;according to the nature of the contract,it can be divided into the Specific Performance of the appointment contract and the Specific Performance of the contract and so on.