1672-8505

CN 51-1675/C

违约方解除权适用困境与优化路径

The Dilemma and Optimization of the Application of the Breaching Party's Right of Rescission

  • 摘要: 作为我国民法的原创性贡献,《民法典》第五百八十条第二款确立的违约方解除权,在理论上和实务中均存在较大争议。实践表明,《民法典》实施后违约方解除权案件的支持率显著上升,但裁判分歧依然较大,对合同解除的时间、损害赔偿的不足、排除“金钱债务”的适用等的理解差异成为司法适用中的最突出问题。文章通过案例研究和实证分析,建议可从以下路径优化其适用效果:在合同解除时间的确定上,“起诉状副本送达日”应仅适用于法律上或事实上已经确定履行不能的合同解除、对应当根据“具体情况”个案裁判的案件进行类型化构建;构建独立的违约获益赔偿规则以遏制故意违约;明确违约方解除权在涉“金钱债务”纠纷中适用的必要性,同时限缩“金钱债务”范围,允许部分“金钱债务”参照适用以化解合同僵局。

     

    Abstract: As an original contribution to China's civil law, Article 580(2) of the Civil Code of the People's Republic of China establishes the breaching party's right of rescission, a provision that has sparked considerable controversy in both theory and practice. Empirical evidence shows that since the Civil Code came into effect, the proportion of cases supporting the breaching party's right of rescission has risen markedly; however, judicial opinions remain divided. Divergent understandings regarding the timing of contract termination, insufficiency of damages, and the exclusion of "monetary obligations" have become the most salient issues in judicial application. Based on case studies and empirical analysis, this paper proposes several approaches to improve the application of this right: (1) regarding the determination of termination time, the "date of service of the copy of the statement of claim" should apply only to contracts that are legally or factually confirmed as impossible to perform, while a typological framework should be developed for cases requiring individualized adjudication according to specific circumstances; (2) an independent rule for compensating profits from breach should be established to deter intentional breaches; and (3) the necessity of applying the breaching party's right of rescission in disputes involving monetary obligations should be affirmed, while at the same time narrowing the scope of such monetary obligations and allowing partial reference application to resolve contractual deadlocks.

     

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