摘要
我国现行合同法把协议解除与行使解除权解除合同并立为合同终止的基本类型,造成了合同终止与合同解除在立法上的包涵,使得合同解除的溯及力在逻辑上出现了矛盾。进而言之,合同解除制度给理论界与实务部门提出了一个重大的理论课题。我国应将协议解除合同与合同解除制度区别开,构建以稳定合同关系、保障合同权威性为基础,符合合同法的立法目的及其基本原则的合同解除制度。
According to our Contract Law, the system of cancellation of contract can be classified into two categories, namely, cancellation by agreement or through exercising right of cancellation, which leads to cross conflicts between termination of contract and cancellation of contract, resulting in logical contradictions in the retroactivity of cancellation of contract. Furthermore, cancellation of contract has proposed a significant theoretical project both for theoretical circle and the practicing profession. We are supposed to differentiate cancellation of contract by agreement from system of cancellation of contract so as to construct a sound contract system, which is based upon a steady contract relationship and a contract authority, and which accords with the contract legislation goal as well as its principles.
出处
《湖南科技学院学报》
2008年第5期162-166,共5页
Journal of Hunan University of Science and Engineering
关键词
合同解除
协议解除
法定解除
溯及力
cancellation of a contract
cancellation by agreement
statutory discharge
retroacfivity
