Specific Performance As a Contractual Remedy in Chinese Courts: An Empirical Study
(2019) 7(1) The Chinese Journal of Comparative Law 26-54
29 Pages Posted: 4 Jun 2019 Last revised: 7 Jul 2019
Date Written: June 4, 2019
This article presents an empirical study that employs statistical data analysis and contextual examination to investigate the prevalence of specific performance (SP) in Chinese courts as a contractual remedy in civil and commercial disputes. The findings of this study reveal that Chinese courts favour damages over SP in breach of contract cases. In addition, Chinese judges take a far more proactive role than their foreign counterparts in the preliminary stages of a trial to persuade parties to seek damages instead of SP. Furthermore, defendants are more likely to settle for damages during trials at first instance courts where SP is available than is the case where further trials are conducted at appellate courts. The findings also suggest that, contrary to what is commonly believed, the supervision cost associated with an SP order is not a determinative factor in judges’ consideration of whether to grant the order.
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