A Comparative study of the contract remedy systems between Anglo-American law and Chinese law
University of British Columbia
Master of Laws - LLM
This thesis presents a comparative study of the contract remedy systems between Chinese law and Anglo-American law. The main aim is to deepen the understanding of both contract remedy systems, particularly to enhance an understanding of the different principles and features of contract remedies in both legal systems. The study centres on two major issues which are the most striking differences between the two contract remedy systems: the principle of specific performance in Chinese law versus the use of monetary damages in Anglo-American law; and the principle of punishment in Chinese law versus the principle of compensation in Anglo-American law. The study strives not only to identify the differences, but also to look into the underlying reasons and implications of those differences. Special effort is made to illustrate these differences in the context of social, economic and cultural perspectives. Much of the discussion is devoted to examining and analyzing the relations and interactions between law and the social and economic environment, especially the great impact which the social system, economic structure, ideology and legal culture of a society have on its contract law. The hypothesis is that legal principles and doctrines are but the expressions in legal forms of the conditions of social and economic life in a society. The principles of a contract remedy system are decided and significantly influenced by the social and economic factors of a society within which the remedy system operates. Therefore, the rules and principles of contract remedies differ substantially between a planned economy and a market economy. And the contrast reflects the different needs of the two societies and the different responses made at the level of law to those needs. In the Chinese context of a planned scarcity economy, contract remedy principles in particular serve to promote the purpose of contracts in implementing the state economic plan. Realization and guarantee of the state economic plan is the touchstone of contract remedies. However, in the context of a market economy, contract remedial rules emphasize a great degree of flexibility and choice to individuals, with minimal government intervention. It is believed that such flexibility and choices can maximize social welfare and promote the operations of a market economy. The study also tries to make a brief critical re-assessment of the specific performance principle and punitive principle of Chinese contract remedies in the changing situations of China which may call for specific reforms in the existing Chinese economic contract law.
Law, Peter A. Allard School of