Availability of Specific Remedies in Chinese Contract Law
Studies in the Contract Laws of Asia Remedies for Breach of Contract (Oxford: Oxford University Press 2016) ch 2.
19 Pages Posted: 9 Jun 2015 Last revised: 6 Feb 2017
Date Written: June 8, 2015
Chinese law seems to adopt a middle-ground approach between the common law approach (damages are the dominant remedy) and the civil law approach (SP is the dominant remedy): both remedies are placed on equal footing, with no hierarchical preference for either SP or damages. Creditors are free to request for specific performance, or other remedies that they prefer. However, several restrictions are put in place to limit the application of specific performance. The middle-ground approach appears to work well in the Chinese context, where parties are given a free hand in selecting the appropriate remedy because they may have more information available than the court to determine whether damages or specific performance is the better compensatory mechanism. However, Chinese courts still retain their discretion in deciding whether to award specific performance as a remedy, even if the creditor requests it. It may seem that different legal systems have reached similar results, on the practical level, with regard to the practical usage of specific performance as a contractual remedy.
Keywords: Specific performance, repair and replacement, performance interest, restrictions, routine remedy
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