租赁标的瑕疵与合同救济

发布时间：2018-03-12 21:37

本文选题：物的瑕疵　切入点：权利瑕疵　出处：《中国法学》2011年05期 　论文类型：期刊论文

【摘要】：租赁标的使用存在公法限制,构成瑕疵;其救济路径除依瑕疵担保主张违约责任之外,尚有依意思表示存在瑕疵(重大误解或者欺诈)主张撤销合同的可能;两种救济路径可由当事人选择。由于权利瑕疵与物的瑕疵在我国法中的构成要件及法律后果均有差异,故对于两类瑕疵进行区分,仍有实际需要。中国合同法在统合瑕疵担保与违约责任的道路上,仍有必要百尺竿头、更进一步。权利瑕疵与物的瑕疵在此处的区分,并无"标准答案";我国实务以标的物受公法限制为一种物的瑕疵,值得赞同。检验通知义务属于不真正义务,检验期间属于除斥期间。瑕疵担保义务属于主给付义务的内容,在其违反具有重大性而使合同目的无法实现场合,可以发生解除权。减价责任的适用通常因当事人行使减价权而引出,惟亦不妨裁判者不经当事人主张而适用减价责任。减价责任虽系物的瑕疵场合的法律后果,在权利瑕疵场合,亦有类推适用的余地。
[Abstract]:The use of the subject matter of lease is limited by public law, which constitutes a defect, besides claiming the liability for breach of contract on the basis of defective guarantee, there is the possibility that there are defects (major misunderstanding or fraud) in accordance with the will to claim rescission of the contract. The two remedy paths can be chosen by the parties. Because there are differences in the constitutive requirements and legal consequences of the defects of rights and objects in Chinese law, the two kinds of defects are distinguished. There is still a practical need. China's contract law is still necessary to make further progress on the road of integrating defect guarantees and liability for breach of contract. The distinction between defects of rights and defects of things is here. There is no "standard answer"; in our country, the subject matter is restricted by public law as a defect, which is worthy of approval. The obligation of inspection notice belongs to the non-real obligation, the inspection period belongs to the period of exclusion, and the obligation to guarantee the defect belongs to the content of the obligation of principal payment. The right of rescission may occur when the breach of the contract is so serious that the purpose of the contract cannot be realized. The application of the liability for reduction usually arises from the exercise of the right of the parties to reduce the price, However, it may also be advisable for the referee to apply the liability for price reduction without the opinion of the parties. Although the liability for price reduction is the legal consequence of the situation where the material is defective, there is room for analogy to apply in the situation of the defect of rights.
【作者单位】：清华大学法学院;
【分类号】：D923.6

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