Research On The Rules For Excluding Continued Performance Due To Excessive Performance Cost

Article 580(1)of the Civil Code of China provides for the exclusion of non-pecuniary debts in the form of a proviso.Among them,the excessive cost of performance,as one of the exclusion grounds for continued performance,is set in abstract and general terms,lacking specific application standards and insufficient supply of relevant systems,which has led to many differences in the understanding and application of the excessive cost of performance rule between academia and practice,and the application of the rule in practice has shown a strong arbitrariness.At this point,it is necessary to explore the application of the excessive cost rule.This article intends to summarize the problems in practice by sorting out the existing decisions and combining with relevant doctrinal research,and try to propose specific standards for the application of the excessive performance cost rule in order to respond to the difficult problems in practice.Excessive performance cost is a manifestation of factual inability under the system of inability to pay,and its justification is based on the principles of economic efficiency and fairness,reflecting the legislator’s consideration of the debtor’s interests and public interests.However,in order to avoid the damage to the principle of strict compliance with the contract due to the improper application of the rules,strict admission criteria should be set for excessive performance costs in order to maintain the priority of the principle of actual performance.In the specific determination,the basic attributes of performance costs should be clarified first,then based on the protection of the interests of creditors and compliance with the principle of strict compliance with the contract,the performance interests of creditors should be the object of comparison.Since the degree of "excessive" is difficult to quantify and easily influenced by various factors,it is necessary to introduce dynamic system theory to determine the degree of "excessive" and provide a relatively stable evaluation system for the judgment of "excessive".It is necessary to introduce dynamic system theory to determine the degree of "excessive" and provide a relatively stable evaluation system for the judgment of "excessive.Specifically,the principles of contractual integrity,fairness and economic efficiency should be taken as the principle elements,and further factors such as debtor’s fault,closeness of contractual relationship,possibility of substitute damages,balance of burden ratio and social public interest should be introduced.The proportion of the value of the basic evaluation will be adjusted to determine the degree of "excessive".The application of excessive performance costs will have the direct legal effect of excluding compulsory performance and temporarily suspending the creditor’s right to continue performance.In addition,the indirect legal effects of the application of the rule are the debtor’s liability for damages in lieu of payment and the creditor’s legal right to rescind the contract.When the creditor is unwilling to rescind the contract and the contract is in a state of impasse,the debtor may apply for judicial rescission after first calling for it.In addition,the debtor’s application for judicial discharge will be subject to certain restrictions.