Down payments: A Franco-Chinese Study

By choosing the earnest money as the subject of comparison, the present study tries to illustrate the relationship between the legal technique and the legal function on the one hand, between the function of a legal institution and its legal regime on the other. The technique and the function are two distinct components of the deposit. The technique of deposit is the same in the two contrary, whereas its functions differs a lot. At the same time, there is an interdependance between those two elements. The function of the deposit determines the role played by the technique. In return, the efficiency of the function depends on the legal technique used. The functional difference also has an impact on the legal regime of the earnest money. Firstly, the problem of judicial control of the clause are not solved in the same way. Secondly, the legal effets produised by the contract of deposit varies according to the its different functions. The present study shows the necessity to assure the adequacy between the function of a institution and its legal regime. Through this research, we intend to provide an overview of the two legal systems, in order not only to give the french readers a complete picture about Chinese law, but also to bring to light the divergences which seperate French law and Chinese law. The massive use of the chinese courts' decisions constitute a remarquable feature of the present work.