Study On The Application Of The Overcost Rule

In Article 580 of the Civil Code of China,"excessive performance costs" is an important part of the payment barrier system.This rule emphasizes the way of relief when the debtor is unable to perform due to performance costs.From the system orientation,it should be placed in the actual payment.From Contract Law to Civil Code,Chinese civil legislation has not jumped out of the "extensive" mode.Academic theories also have different views on the theoretical support behind the excessively high cost rule.There is no common understanding of the application conditions and specific criteria of the rules.Moreover,the ambiguity of norms and theories often fails to achieve the accuracy of the application level,and there is no lack of judgment with confused understanding in the field of practice,which is mainly manifested in the confusion of the application conditions of rules,the unclear composition of performance costs,the diversification of comparison objects,the inconsistent comparison standards of review,and the unclear effect of application.In terms of comparative law,the relevant contents of German Civil Code can be used for local reference.Based on the research of relevant scholars and case studies collected,the author believes that the specific application of the rule of excessive performance costs can be referred to as follows.On the one hand,before the application of the rule,the conditions of debt nature,limitation and exclusion of special contract risks,and system differentiation should be examined.The judgment level of the application of the rule includes: the composition of performance expenses should be considered as a whole,and limited to the necessary expenses borne by the debtor;The view that there is applicable opportunity cost simply under the debtor’s efficiency allocation is actually a malicious breach of contract in the guise of rationality,and the application of high cost is not considered much.Performance cost of excessive comparison objects should be creditor performance interests,excessive comparison standards should conform to the uniform order of legal interpretation and applicable,dynamic system theory because of its inherent shortcomings does not conform to our current trial actual.In terms of the legal effect of the application of the rule,it should be recognized that the debtor has the right of defense for refusing to perform.In order to obtain the exemption of continued performance,the debtor needs to take the initiative to exercise the right,and the substitute compensation it owes to the creditor should be made up for the creditor satisfactorily under the limitation of the principle of predictability.