A Study on China’s Risk-Bearing of Sales Contract

• Main Authors: BaI-Ling Huang, 黃柏齡
• Other Authors: none
• Format: Others
• Language: zh-TW
• Published: 2012
• Online Access: http://ndltd.ncl.edu.tw/handle/12256142300226452245

碩士 === 東吳大學 === 法律學系 === 100 === The sale is the most important and popular deal among the human economic activities. Sales are almost everywhere and nobody will not be among them. With the development of international trade, the law of the sales is paid more attentions both in the nation and in the internationals step by step. Since mainland China carried out the reform and opening policy from 1978, its economic & trade activities with other countries in the world and Taiwan are growing prosperously day by day. The legal system in mainland China, especially its sale contract on the contract law, definitely occupies an important situation. In the process of the delivery of the sale goods, there are vacious factors that may cause damage to the goods or loss of them. When the factors that can’t be attributed to the two parties of the contract cause damage to the goods or loss of them, it concerns the benefits of the two of the parties that one of them shall bear the risk. Meanwhile, the risk usually happens with a breach of the contract, and it makes the risk-bearing more complicated. In general,when it comes to risk-bearing,there are three kinds of legislation forms in the world now. The first one is that the risk should be passed at the time of the conclusion of the contract. The second one is that the risk should be passed when the ownership is transferred. The third one is that the risk should be passed when the goods are delivered. The contract law in Mainland China adopts the the third one. It is in accordance with the major countries in the world. This thesis focuses on the concept , characteristics and theories of the risk, including analyzing something relative. It also introduces the systems of the risk-bearing of the United Nations Convention on Congtracts for the International Sale of Good (CISG),Uniform Commercial Code(UCC) and other major countries. The following is the rules of the Mainland China, and then the thesis compares the rules of Mainland China with those of CISG, UCC and other major countries. The thesis is divided into six parts as follows : Chapter 1: Preface Chapter 2: The history of the contract law in Mainland China and its general content of the contract for the sale Chapter 3: The risk-bearing of the contract for the sale and its major theories together with legislation Chapter 4: The risk-bearing of the contract for the sale in Mainland China at present Chapter 5: The risk-bearing of the Mainland China in comprison with that of international convention, Taiwan and U.S.A. in addition to the comments Chapter 6: Conclusion and suggestions The mainland China’s legislation for contract law mainly adopts the system of advanced foreign countries and international conventions, especially CISG, by way of research and discussion for several years. The rules of risk-bearing of the contract for the sale in Mainland China are stipulated from article142 to article149. They are in keeping with international trends and practical necessities on the whole. In spite of that,some of the rules are still doubtful and insufficient by further studying. Therefore, the thesis gives some opinions for reference. However, the risk-bearing of the contract for the sale is a issue which is worth focusing on and researching.