浅议效率违约

如果违约方从违约中获得的利益大于他向非违约方做出履行的期待利益,法律应当允许当事人选择赔偿对方的损失而不履行合同,此即效率违约.在坚持契约自由的前提下,当事人只有在符合效率违约的适用条件时,才能行使不履约而赔偿守约方损害的选择权.效率违约理论顺应时势把经济学的效益原则和分析方法运用于合同法领域,符合市场经济发展规律,为我们健全和完善违约责任理论、逐步实现从强调实际履行到以实际履行与损害赔偿并重的转变,提供了全新的思考模式.

Analysis on Efficiency Breach

The efficiecy breach has its economic and juristic basis, but its application should be strictly regulated. Our countryCs Company Act should perform relevant regulations and the No. 110 item of Company Act should also be improved. If the defaulting party gets more benefits from breach, the law should allow the party to choose to compensate the loss for the other party instead of performing the contract, this is efficiency breach. Only when adhering to the premise of free contract setting principle and the condition of using effi- ciency breach, can the pary exercise the option to compensate the loss instead of performing the contract. The theory of efficiency breach, which conforms to the trend and puts the econonmic efficiency and the ananalyti- cal methods into the field of contract law, corresponds with market economy rules,and provides a new mode of thinking for improving the theory of breach,and grdually realizing the change from emphasizing practical performance to both performance and damages compensation.