A Brief Discussion on Litigation (Arbitration) Request for "Continued Performance of Contract"
Author | Criminal Center, Lawyer Liu Zhanlei
In civil litigation (arbitration), the selection and submission of litigation (arbitration) claims are important links that determine the direction and outcome of the case. Among them, "continue to perform the contract" is a common litigation (arbitration) request, but in practice, its application conditions and coordination with the execution procedure are complex. This article will discuss the litigation (arbitration) request of "continue to perform the contract" in combination with relevant laws, regulations and cases.
I. Provisions on Continued Performance in the Civil Code of the People's Republic of China
1. Continued performance is one of the main ways to assume civil liability.
Article 179 of the Civil Code of the People's Republic of China stipulates that the main methods of assuming civil liability are:
(1) Cease the infringement; (2) Remove the obstacle; (3) Eliminate the danger; (4) Return the property; (5) Restore the original state; (6) Repair, rebuild, and replace;(7) continue to perform;(8) Compensation for losses; (9) Payment of liquidated damages; (10) Elimination of damage and restoration of reputation; (11) Apology.
Where the law provides for punitive damages, such provisions shall prevail. The means of assuming civil liability as provided in this Article may be applied separately or in combination.
2. Continued performance is one of the ways in which the party in breach of contract bears the liability for breach of contract.
Article 577 of the Civil Code of the People's Republic of China stipulates that if a party fails to perform its contractual obligations or the performance of its contractual obligations does not conform to the agreement, it shall bear the responsibilitycontinue to performTake remedial measures or compensate for lossesliability for breach of contract。
3. Not in all cases of breach of contract can a request be made to continue the performance of the contract.
"Article 580 of the Civil Code of the People's Republic of China" If a party fails to perform a non-pecuniary debt or the performance of a non-pecuniary debt is not in accordance with the agreement, the other party may request performance, except in any of the following circumstances: (1) It cannot be performed in law or in fact; (2) The subject matter of the debt is not suitable for compulsory performance or the performance fee is too high; (3) The creditor fails to request performance within a reasonable period of time.
If there is one of the exceptions provided for in the preceding paragraph, which makes it impossible to achieve the purpose of the contract, the people's court or arbitration institution may terminate the contractual rights and obligations at the request of the parties, but it will not affect the liability for breach of contract.
In summary, the request for continued performance of the contract has the legal basis of substantive law. However, the continued performance of the contract in the legal provisions is abstract, and the continued performance of the contract in the case is specific. Whether it is appropriate to use'continue to perform the contract 'as a litigation (arbitration) request in the case is still debatable。
II. Provisions and cases in the Civil Procedure Law of the People's Republic of China, judicial interpretations, and judicial documents regarding litigation claims for continued'performance of contracts'
1. A specific claim is one of the conditions that must be met for prosecution.
According to Article 122 of the Civil Procedure Law of the People's Republic of China, a lawsuit must meet the following conditions: (1) the plaintiff is a citizen, legal person, or other organization with a direct interest in the case; (2) there is a clear defendant;(3) There are specific claims and facts and reasons for litigation.(4) It falls within the scope of the people's court accepting civil litigation and is under the jurisdiction of the people's court under litigation.
2. If it is found that the prosecution conditions are not met after filing the case, the prosecution shall be rejected.
Article 208 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China (2022 Amendment) states that when a people's court receives a civil complaint submitted by a party, it shall register and file a case if it meets the requirements of Article 122 of the Civil Procedure Law of the People's Republic of China and does not fall under the circumstances stipulated in Article 127; if it cannot determine on the spot whether the conditions for prosecution are met, it shall receive the prosecution materials and issue a written certificate indicating the date of receipt.
If it is necessary to supplement the necessary relevant materials, the people's court shall inform the parties in a timely manner. After completing the relevant materials, it shall decide within seven days whether to file a case. After filing the case, if it is found that the conditions for prosecution are not met or the circumstances stipulated in Article 127 of the Civil Procedure Law of the People's Republic of China are not met, the prosecution shall be dismissed.
3. The "Opinions of the Supreme People's Court on the Coordinated Operation of the People's Court's Filing, Trial and Enforcement Work" regarding the continued performance of the contract.
"Opinions of the Supreme People's Court on the Coordinated Operation of the Filing, Trial and Enforcement Work of the People's Courts"11. The main text of a legal instrument should be clear and specific:(1) When paying money, the amount should be specified.
Where it is necessary to calculate the amount of interest or liquidated damages, there shall be a clear calculation base, standard, start and end time, etc.; (2) When delivering a specific subject matter, specific information such as the name, quantity, and specific characteristics of the specific object shall be clarified, as well as the time and method of delivery; (3) When determining inheritance, the name, quantity, and amount of the estate shall be clarified; (4) When dividing property in a divorce case, the name, quantity, and amount of the property shall be clarified;(5) Where the contract continues to be performed, the parties shall specify the content and manner of the contract.(6) If the infringement is stopped, the specific method of stopping the infringement and the specific content or scope of the infringed rights shall be clarified; (8) If the right to visit children is determined, the method, specific time and place of visit, and the handover method shall be clarified; (9) If the parties have obligations to pay each other, they shall clearly performorder。
If the amount of property specified in the preceding paragraph is relatively large, a separate list may be attached to the legal document.
4. Cases in which the lawsuit (arbitration) request for'continued performance of the contract 'was rejected.
Tuerhun Wushur, Xinjiang Xinda Real Estate Development Co., Ltd. contract dispute civil second-instance civil court verdict [ (2023) Xin 01 Minzhan No. 2452].
In the court verdict, the People's Court of the New District of Urumqi City held that'with regard to Tuerhun Hoshur's request for Cinda Real Estate Company to continue to perform the contract, deliver 96 square meters of housing to him and handle the real estate ownership certificate for him, upon inquiry by the court of first instance, Tuerhun Hoshur failed to specify the specific house number of the house required to be delivered by Cinda Real Estate Company in the request. According to Article 122 of the Civil Procedure Law of the People's Republic of China, the lawsuit must have specific claims.
If the above request of Tuerhun Hoshur is not specific, the prosecution should be rejected. '
In the court verdict, the Urumqi Intermediate People's Court held that "according to the Agreement on Demolition Compensation and Resettlement, after Cinda demolished the 54-square-meter house of Tuerhun Hoshur, it should compensate Tuerhun Hoshur on XXX for a house with an area of 81 square meters. After that, Tuerhun Hoshur voluntarily increased the house area to about 96 square meters, and the excess 15 square meters of Tuerhun Hoshur was purchased at the market price.
However, because Tuerhun Hoshur has not yet chosen a house, the specific house number that Cinda Real Estate Company should deliver the house cannot be determined, and the conditions for handling the real estate ownership certificate are not met. Because Tuerhun Hoshur failed to clarify the specific content of the claim, the court of first instance ruled that it was not improper to dismiss the lawsuit by way of a judgment absorbing the ruling.
In summary, if a claim for'continued performance of the contract 'is used as a lawsuit (arbitration), the specific content of the continued performance of the contract should be clarified, otherwise there is a risk of being rejected by the court; after the court accepts it, there is also a risk of being asked by the court to clarify the specific content of the continued performance of the contract, and there is also a risk of being rejected by the court when the parties refuse to clarify or fail to clarify the specific content of the continued performance.
III. Provisions and cases related to litigation (arbitration) claims for'continued performance of the contract 'in the enforcement procedure
1. Provisions of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China (2022 Amendment) Relating to Litigation (Arbitration) Claims for'Continued Performance of Contracts'
Article 461 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China (2022 Amendment) states that the effective legal documents that a party applies to the people's court for enforcement shall meet the following conditions: (1) The subject of rights and obligations is clear;(2) The content of the payment is clear. Where the legal document determines the continued performance of the contract, the specific content of the continued performance shall be clarified.
2. Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of People's Courts (for Trial Implementation) (2020 Amendment) Relating to Litigation (Arbitration) Claims for'Continued Performance of Contracts'
"Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement Work of People's Courts (for Trial Implementation) " (2020 Amendment) 16. A people's court accepting an enforcement case shall meet the following conditions: (1) The legal document applying for or transferring for enforcement has come into force; (2) The person applying for enforcement is the right holder or his successor or heir as determined by the effective legal document;(3) The legal document applying for execution has the content of payment, and the subject of execution and the person subject to execution are clear.(4) The obligor fails to perform its obligations within the time limit determined by the effective legal document; (5) It is under the jurisdiction of the people's court applying for enforcement.
The people's court shall file an application that meets the above conditions within seven days.If one of the above conditions is not met, it shall be ruled inadmissible within seven days.
3. "Opinions of the Supreme People's Court on the Coordinated Operation of the People's Court's Filing, Trial and Enforcement Work" related to litigation (arbitration) claims for'continued performance of the contract '
"Opinions of the Supreme People's Court on the Coordinated Operation of the Filing, Trial and Enforcement Work of the People's Courts" 15. If the enforcement agency finds that the implementation content of the effective legal documents made by the court is unclear, it shall consult the judicial department in writing. The judicial department shall make a written reply or rule to make corrections within
15days.
If the judicial department fails to reply in time or does not reply, the enforcement agency may report to the president to urge the judicial department to reply. The effective legal documents with unclear implementation content are made by the higher court, and the enforcement agency of the enforcement court shall report to the enforcement agency of the higher court, and the enforcement agency of the higher court shall seek opinions from the judicial department.
The judicial department shall make a written reply or order to make corrections within 15 days. If the judicial department of the higher court fails to reply in time or does not reply, the executive organ of the higher court shall report to the president to urge the judicial department to reply. The effective legal documents with unclear implementation content are made by other courts. The executive organ of the enforcement court may send a letter to the court executive organ that made the effective legal documents, and the executive organ of the court shall seek opinions from the judicial department.
The judicial department shall make a written reply or ruling to make corrections within 15 days. If the judicial department fails to reply or does not reply in time, the court executive organ that made the effective legal document shall report to the president and urge the judicial department to reply.
4. Provisions of the Supreme People's Court on Several Issues Concerning People's Courts' Handling of Cases Concerning the Enforcement of Arbitral Awards Relating to Litigation (Arbitration) Claims for'Continued Performance of Contracts'
Article 3 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Cases of Enforcement of Arbitral Awards by People's Courts Article 3: Where the enforcement content of an arbitral award or an arbitration mediation statement is unenforceable under any of the following circumstances, the people's court may rule to reject the application for enforcement; if it is partially unenforceable, it may rule to reject the application for enforcement of that part; if it is partially unenforceable and the part is inseparable from other parts, it may rule to reject the application for enforcement.
(1) The subject of rights and obligations is unclear; (2) The specific amount of money payment is unclear or the calculation method is unclear, resulting in the inability to calculate the specific amount; (3) The specific goods delivered are unclear or cannot be determined; ((4) The standards, objects, and scope of performance of the conduct are not clear; the arbitral award or arbitration mediation document only determines the continued performance of the contract, but the rights and obligations for continued performance, as well as the manner and time limit of performance, are not clear, resulting in unenforceability, shall be dealt with in accordance with the provisions of the preceding paragraph.
5. Cases where "continued performance of the contract" is used as a litigation (arbitration) request, and the application for execution is rejected
(1) Guangzhou Namin Electronic Technology Co., Ltd., Shenzhen Guruiwatt new energy joint stock company sales contract dispute enforcement review enforcement ruling [ (2020) Yue Zhifu No. 797]
In the ruling, the Shenzhen Intermediate People's Court held that "the second item of the enforcement basis for the application for enforcement is to require the application for enforcement and the person subject to enforcement to continue to perform three orders with contract numbers P20170111026, P20170426007, and P20170510001, respectively."
Because the ruling did not determine the specific content such as the delivery date, deadline, whether to perform in installments, the quantity of performance in installments, and the delivery method of the order. The enforcement application of Guangzhou Namin Company, the applicant for enforcement, is not clear in the content of rights and obligations and does not meet the conditions for filing and enforcement. Its enforcement application should be rejected according to law.
”；
In the ruling, the Higher People's Court of Guangdong Province held that, "In this case, according to the (2018) Shenzhen Arbitration Award No. 2246 that has taken legal effect, the applicant for enforcement applied to the Shenzhen Intermediate Court for compulsory enforcement. The content of enforcement is that the applicant for enforcement delivers the goods on the one hand, and the person subject to enforcement pays the payment for the goods on the other hand. Obviously, both the applicant for enforcement and the person subject to enforcement have mutual obligations. To this end, it needs to be determined that both the applicant for enforcement and the person subject to enforcement should perform their obligations, the method of performance, the date, and the time limit.
Combined with the arbitral award "Respondent Shenzhen Guriwat Company and Applicant Guangzhou Namin Company continue to perform three" Order Orders "with contract numbers P20170111026, P20170426007, and P20170510001 respectively" and "... According to the facts ascertained by the arbitral tribunal, there are still 23,240 pieces of goods with the specification model T60404-N 4646-X412/100A/50mA under the contract number P20170111026" Order Order " (with a value of 924,487.20 yuan) that have not been shipped; 15,000 pieces of goods with the specification model T60404-N 4646-X412/100A/50mA under the contract number P20170426007" Order " (with a value of 592,500.00 yuan) have not been shipped;There are still 32,074 pieces (value 1,151,456.60 yuan) of goods with specifications T60404-N 4646-X410/50A/50mA under the "Order Order" under the contract number P20170510001, and 30,000 pieces (value 1,185,000 yuan) of goods with specifications T60404-N 4646-X412/100A/50mA have not been shipped.
The parties shall, respectively, in accordance with the provisions of the three "Order Orders" with contract numbers P20170111026, P20170426007, and P20170510001, continue to perform the corresponding unshipped parts identified by the arbitral tribunal. They can only determine the type, quantity, and value of the goods that the applicant for enforcement should deliver, but cannot determine the specific content such as the time limit, method, place, inspection, and place of performance.
Therefore, the enforcement application of the applicant is not feasible and does not meet the conditions for the acceptance of the enforcement case. "
(2) Zhao Xiaolan and He Guofa Contract Dispute Enforcement Objection Enforcement Ruling [ (2021) Chuan 1921 Defiant No. 159]
In the ruling, the Tongjiang County People's Court of Sichuan Province held that "the Tongjiang County People's Court made two main articles in the (2021) Sichuan 1921 Civil Court verdict No. 1627, one is to confirm that the Longfengchang Town Mediation Committee issued on April 21, 2020 The Mediation Opinion of the Longfengchang Town People's Mediation Committee is valid, and both Zhao Xiaolan and He Guofa should be fully implemented; Zhao Xiaolan should not be prevented from building a road to enter the house within the scope agreed in the mediation opinion.
The second is to reject Zhao Xiaolan's other claims. The first item of the judgment determined that both the plaintiff Zhao Xiaolan and the defendant He Guofa should fully perform the "Longfengchang Town People's Mediation Committee Mediation Opinion" issued by the Longfengchang Town People's Mediation Committee on April 21, 2020, and the mediation opinion did not specify the specific content of the obligations that He Guofa should perform. Therefore, although the (2021) Sichuan 1921 Civil Court verdict No. 1627 of the People's Republic of China ruled that "both Zhao Xiaolan and He Guofa should fully perform", the actual obligations that He Guofa should perform are uncertain.
Therefore, according to Article 463 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China, "An effective legal document that a party applies to the people's court for enforcement shall meet the following conditions: (1) The subject of rights and obligations is clear; (2) The content of payment is clear.
If a legal document determines the continued performance of the contract, it shall clarify the specific content of the continued performance. Therefore, the (2021) Sichuan 1921 Civil Court verdict No. 1627 cannot be used as the basis for applying for execution. "
To sum up, taking "continued performance of the contract" as a claim for litigation (arbitration), even if it is supported in the trial procedure, there is still a risk of inadmissibility and unenforceability in the execution procedure.
IV. Practical recommendations
In view of the above analysis, in order to avoid unnecessary disputes in litigation and enforcement procedures, we should try our best to avoid directly using "continued performance of the contract" as a litigation (arbitration) request, and instead choose the specific content of continued performance as a litigation (arbitration) request; when directly using "continued performance of the contract" as a litigation (arbitration) request, we should also try our best to explain the specific content of continued performance; when it is difficult to clarify the content of continued performance, try to consider choosing other alternative litigation claims, such as "confirming the validity of the contract". The similarities and differences between the two will not be repeated here.
Readers are invited to criticize and correct any inappropriateness of the above views.
Lawyer Profile
Lawyer Liu Zhanlei
Member of the Civil Procedure Law Professional Committee of Shenzhen Lawyers Association
Deputy Director of the Financial Crime Defense Department of Guangdong
Deputy Director of the Financial Services Legal Professional Committee of the Lawyers Group of Shenzhen Consumer Council
Service area
Perennial legal counsel, civil and commercial dispute resolution, criminal defense of property crimes
Center Profile
Criminal Center
The Criminal Center is one of the professional centers of
. Its main business includes commercial crime defense, criminal litigation, financial crime defense, common crime defense, and criminal-civil intersection. It brings together talents, platforms, and professional advantages. At the same time, it has the advantage of quickly forming cross-business and cross-regional cooperation teams, and can provide comprehensive, timely and accurate legal services to clients.
The Criminal Center is dedicated to professional cultivation, and continues to move forward with the goal of "building an excellent business card for national criminal legal services".
This article and its content are shared by Zhiheng lawyers, for communication purposes only, and do not represent the legal opinions, suggestions or decision-making basis issued by the law firm or lawyers. If you need legal advice or legal professional analysis, please contact the professional lawyers of
, or leave your contact information in a private message WeChat official account. If you need to reprint this article, please contact the official account editor in the background.