摘要
我国学界讨论的合同僵局其实包含两种不同情形:债权人在非金钱债务履行请求权被排除后不及时行使解除权所致的僵局;债务人履行困难意图解约,且继续履行将导致当事人双方利益失衡,但债权人因有权请求继续履行而不及时行使解除权所致的僵局。前者可通过适用《民法典》第580条第2款得以解决,但后者缺乏明确法律依据。对于第二种僵局,我国可借鉴域外法经验,从减损义务的角度对债权人的履行请求权进行限制。比较法上就此存在直接和间接限制两种路径。在解释论上,《民法典》具备采取间接限制路径的可行性与合理性。在判断债权人是否违反减损义务时,除了要考虑债权人能否合理进行替代交易及其困难度,还要考虑债务人一方因减损措施所能获得的利益及此利益在何种程度内值得保护等因素。
The concept of contractual deadlock under discussion in China's academia has been manifested in two different situations.One refers to where a creditor fails to execute his right to terminate a contract in a timely manner when his right to non-monetary performance has been excluded.The other happens when a debtor has difficulty in performing a contract and intends to terminate the contract,and wherein the continuation of performance will lead to imbalance of benefits of two parties,but the creditor insists on his right to performance instead of terminating the contract in a timely manner.The former deadlock issue can be addressed by applying to para.2 of Art.580 of China's Civil Code,while there is an explicit absence of legal basis in the latter.To solve this problem,China could reference to the practice of foreign law by setting restriction to the creditor's right to performance from the perspective of mitigation.There exists a direct restricting approach and an indirect restricting approach to the understanding of the relationship between the two.To demonstrate from the perspective of law-interpretation analysis,the Civil Code has feasibility and rationality in adopting indirect restricting approach.To determine whether the creditor has violated his duty to mitigate or not,in addition to consider the creditor's capability of reasonably conducting substitute transaction and its difficulties thereof,we should also take into account the benefits that can be obtained by the debtor on the basis of mitigation measures and to what extent the benefits deserve protection.
出处
《中外法学》
CSSCI
北大核心
2021年第4期888-907,共20页
Peking University Law Journal
关键词
合同僵局
履行请求权
解除
减损义务
替代交易义务
Contractual Deadlock
Right to Performance
Termination
Mitigation
Substitute Transaction
