| Protecting the legitimate rights and interests of the parties to the contract,maintaining the social and economic order and promoting the modernization of China have always been the legislative objectives of China’s contractrelated laws,whether the repealed Economic Contract Law,the Contract Law,or the current Civil Code are no exceptions.Against the backdrop of widespread industrial production and an exceptionally dynamic market economy,the stability of credit and debt relationships is increasingly challenged,and it is not uncommon to see "breaches" of contract in which debts are not performed or fully performed,which brings the issue of remedies for creditors into sharp focus.The life of the law lies in its implementation,and the new rights can only be applied in practice by combining judicial practice and theoretical views on how they should be applied in order to achieve their proper legislative effect.Therefore,through the analysis of 167 sample cases,this article aims to make a few suggestions on the application of the rule of substituted performance by a third person in terms of its prerequisites,constituent elements.The first chapter is the first focus of this article.This part analyzes the status of judicial application of the rules of substitute performance by a third person in cases,and puts forward the problems existing in judicial practice through case analysis.There are mainly the following four problems: first,the application premise is not clear;Second,the constituent elements are difficult to define and apply;Third,the method of determining the expenses of a substitute performance by a third person is unclear.Chapters II,III and IV are the second focus.This section analyzes the problems existing in judicial practice of the rules of a substitute performance by a third person chapter by chapter,and conducts research from the dual perspectives of theoretical viewpoints and judicial cases as follows:First,analyze the preconditions for the application of the rule of substituted performance by a third person.The application of the substituted performance is based on the existence of a breach of contract and may refer to the procedural law of substituted performance;it also does not presuppose the rescission of the original contract,since the protection of the creditor’s rights is better served by the non-resolution of the contract.Secondly,the constitutive elements of the substituted performance should be clarified.There are three elements: the subject matter should be claimed by the non-breaching party and the right should be exercised in a timely manner;Secondly,the nature of the debt in substitution is not enforceable,the "not enforceable" is not exactly the same as the situations listed in Article 580(2)of the Civil Code,and the non-enforceable debt should be substitutable,based on the conclusion that "substitutability" has its own general criteria for determining the type of debt that can be substituted;thirdly,the identification of the elements of the manner in which the power is exercised,the creditor’s right based on the substitution can be exercised either directly through private remedies or through the judicial power by filing a lawsuit,which is determined by its nature as a substantive right.Thirdly,The time for payment of costs of substituted performance.The payment of costs of substitute performance is differentiated according to whether the costs have actually been incurred: costs that have actually been incurred should be judged reasonable according to the method of determining the costs,and reasonable costs of substitute performance should be paid within a reasonable period of time;costs that have not actually been incurred should be determined using a method of general application,while the debtor may be requested to pay the costs in advance. |
