A Study on Systems of Lodgment for Performance in Taiwan and China

• Main Authors: Yu-min Ma, 馬有敏
• Other Authors: Yang-shiou Huang
• Format: Others
• Language: zh-TW
• Published: 2007
• Online Access: http://ndltd.ncl.edu.tw/handle/66698445700067648128

碩士 === 東吳大學 === 法律學系 === 95 === Lodgment is a legal system to release obligor’s legal obligation when the reason for the obligor not able to perform his/her obligation of tendering is due to the delay of obligee in taking delivery. The system of lodgment allows the obligor to tender the object that he/she is supposed to deliver to organizations of lodgment and release his obligation of performance. However, the definition mentioned above is only the original meaning of lodgment when the system originated under Roman law in ancient times. With changes up until the present day, the system of lodgment has developed into various forms and performed different purposes and functions. Scholars in Taiwan and China normally divide the system of lodgment into two categories: lodgment for performance and lodgment for guarantee. Because of personal and thesis limitations, the research will only focus on a comparison between lodgment of performance system in Taiwan and China. As mentioned above, the lodgment system originates from a system to release the obligors’ obligation when obligee delays in receiving obligors’ tenders. It acts as an alternative way for the obligor to perform his/her obligation. However, obligee’s legal interests should also be taken into account when designing the system of lodgment. The difficulty in designing a lodgment system lies in how to reconcile different parties’ interests. The lodgment of performance is different from the real performance because three parties are involved. It creates a more complicated situation than real performance. There are three major issues in the lodgment of performance: the requirement, effect and procedure of lodgment. Under Taiwan's Civil Code, only the requirement and effect of lodgment are regulated. The procedure of lodgment is stipulated in the Law of Lodgment. Because the Civil Code is not yet enacted in China, the requirement and effect of lodgment are regulated in the Contract law of the P.R.C. The rule of notarial lodgment stipulates some elements regarding the substantive rules and procedural rules of lodgment. This thesis consists of six chapters. The first two chapters provide an introduction and historical research on the lodgment system. The remaining parts are descriptions regarding the requirement, effects and procedure of the lodgment system. The last chapter presents a conclusion of the research. Although the lodgment system is an important system in Civil Law countries and was adopted by China and Taiwan, it is not fully understood by scholars on the two sides of the Strait. The laws regarding the substantive and procedural regulations of the lodgment system are not sufficiently comprehensive. The deficiency has already hampered the development of lodgment systems. This research is to present my observation of such systems and on synthesis within the legal systems of developed countries. I offer concrete suggestions regarding how to revise relevant regulations in order to improve the deficiencies in lodgment systems of Taiwan and China.