| There are two theoretical frameworks regarding to the issue of the binding effect of a contract, namely the framework of obligatory right and the framework of contractual right. These two frameworks are very different and not compatible. Due to the facts that Chinese contract law came into being without a civil code and that international current had influences on its formation, the general structure of Chinese contract law is built on the framework of contractual right. However, due to the insufficiency in the theoretical preparation, both the legislators as well as the legal interpreters are not fully aware of the reasoning and significance behind the above two frameworks. Therefore, they misinterpret the system of strict liability and use it as a foundation of the framework of contractual right. This results in elements of the framework of obligatory right being confused with the elements of the framework of contractual right, as found in both the enactment and interpretation of the law. Confusions can be seen in the double attributive reasons of responsibility, the assessment of damages, breaching of a contract due to a third party, the relationship between the termination of a contract and the assuming of risk, and finally, the positions of the institutes of force majeur and substantial change of circumstances. Such confusions have led not only to contradictions in the legal structure of Chinese contract law but also to differences in the legal effect of some contracts. These confusions and deviations concerning to these issues can only be solved and corrected by restructuring the theory on the binding effect of a contract with the framework of contractual right. |
京公网安备11010102006664号 京ICP备2023015853号