合同任意解除权法律问题分析
发布时间：2018-08-23 09:00
【摘要】：合同任意解除权是我国合同法中的一项重要制度，顺应了现代社会对自由和效率的追求，体现了英美法系效率违约和大陆法系任意解除权的基本内涵和核心精神，具有兼容并蓄的后发优势和极强的生命力。但纵观现行法律，合同的任意解除权制度并没有形成完备的体系，在我国合同法总则中也没有相关的总括性规定，而是多散见于合同法分则和一些特别法中，正是由于立法的缺失和理论研究的薄弱，在司法实务中引发了诸多争议和混乱，使得相同案件不同判决的情况时有发生。同时也使得当事人无所适从，滥用合同任意解除权的情况较为普遍，导致了纠纷难以解决，受损害一方当事人的赔偿请求得不到满足的情况严重，极大地破坏了社会公平和正义。 本文分三部分进行，第一部分主要介绍了解除权的概念体系，明确了合同任意解除权在其中的地位和本质，重点阐述了该制度与英美法的效率违约制度的关系，并深入剖析了该制度在我国法律体系中的适用空间以及由此带来的矛盾和冲突。另外对于我国现行法律中关于合同任意解除权的主要条文进行了细致的分析和归纳，从而探寻立法的宗旨和目的。第二部分通过对一些典型案例的分析，详细阐述了合同任意解除权制度在适用过程中存在的问题和由此引发的争议。第三部分针对实践中出现的问题提出建议，对合同任意解除权进行必要的法律规则，以保障交易安全和经济秩序的稳定。 合同任意解除权在适用的过程中产生了一些问题，引发了很大的争议，如约定合同任意解除权的效力问题，本文认为合同任意解除权是由法律规定的一项特殊的权利，如果任由当事人约定来设定或者抛弃解除权的话，势必会损害法律的确定性和稳定性，甚至影响经济秩序的稳定。另外行使任意解除权之后的赔偿范围，本文也认为范围限于实际损失而不含可得利益，否则合同将无异于实际履行，这与合同任意解除权的立法理念不相符合。针对这些问题，法律应有相对完善和细致的规定，，才能在实践中起到很好的指导作用，达到化解纠纷，鼓励交易之目的。
[Abstract]:The right of arbitrary rescission of contract is an important system in the contract law of our country, which conforms to the pursuit of freedom and efficiency in modern society, and embodies the basic connotation and core spirit of the efficiency breach of contract in common law system and the arbitrary rescission right in civil law system. Has the inclusive late development superiority and the extremely strong vitality. However, throughout the current law, the system of arbitrary rescission of contract has not formed a complete system, and there are no relevant omnibus provisions in the general principles of contract law of our country, but they are scattered in the special provisions of contract law and some special laws. Because of the lack of legislation and the weakness of theoretical research, it has caused many disputes and confusion in judicial practice, which makes different judgments of the same cases occur from time to time. At the same time, it also makes the parties at a loss, the abuse of the right of arbitrary rescission of the contract is more common, resulting in the dispute is difficult to resolve, the injured party's claim for compensation is not satisfied seriously. It has greatly undermined social equity and justice. This paper is divided into three parts. The first part mainly introduces the concept system of the right of rescission, clarifies the position and essence of the right to rescind the contract arbitrarily, and expounds the relationship between the system and the efficiency breach of contract system in Anglo-American law. It also analyzes the application space of this system in our country's legal system and the contradictions and conflicts brought about by it. In addition, this paper makes a detailed analysis and induction of the main provisions of the current law of our country concerning the right of arbitrary rescission of contracts, so as to explore the purpose and purpose of the legislation. In the second part, through the analysis of some typical cases, the problems and disputes arising from the application of the system of arbitrary rescission of contract are expounded in detail. The third part puts forward some suggestions on the problems in practice and makes necessary legal rules to guarantee the security of transaction and the stability of economic order. Some problems have arisen in the process of application of the right of arbitrary rescission of a contract, which has caused great controversy. For example, the validity of the right of arbitrary rescission of a contract is stipulated by law, this paper holds that the right of arbitrary rescission of a contract is a special right stipulated by law. If the parties are allowed to agree to set or abandon the right of rescission, it will inevitably damage the certainty and stability of the law, and even affect the stability of the economic order. In addition, the scope of compensation after the exercise of the right of arbitrary rescission, this article also thinks that the scope is limited to the actual loss and does not contain the available benefits, otherwise the contract will be tantamount to actual performance, which is inconsistent with the legislative concept of the right of arbitrary rescission of the contract. In view of these problems, the law should be relatively perfect and meticulous, in order to play a good guiding role in practice, achieve the purpose of resolving disputes and encouraging transactions.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6
本文编号：2198555
[Abstract]:The right of arbitrary rescission of contract is an important system in the contract law of our country, which conforms to the pursuit of freedom and efficiency in modern society, and embodies the basic connotation and core spirit of the efficiency breach of contract in common law system and the arbitrary rescission right in civil law system. Has the inclusive late development superiority and the extremely strong vitality. However, throughout the current law, the system of arbitrary rescission of contract has not formed a complete system, and there are no relevant omnibus provisions in the general principles of contract law of our country, but they are scattered in the special provisions of contract law and some special laws. Because of the lack of legislation and the weakness of theoretical research, it has caused many disputes and confusion in judicial practice, which makes different judgments of the same cases occur from time to time. At the same time, it also makes the parties at a loss, the abuse of the right of arbitrary rescission of the contract is more common, resulting in the dispute is difficult to resolve, the injured party's claim for compensation is not satisfied seriously. It has greatly undermined social equity and justice. This paper is divided into three parts. The first part mainly introduces the concept system of the right of rescission, clarifies the position and essence of the right to rescind the contract arbitrarily, and expounds the relationship between the system and the efficiency breach of contract system in Anglo-American law. It also analyzes the application space of this system in our country's legal system and the contradictions and conflicts brought about by it. In addition, this paper makes a detailed analysis and induction of the main provisions of the current law of our country concerning the right of arbitrary rescission of contracts, so as to explore the purpose and purpose of the legislation. In the second part, through the analysis of some typical cases, the problems and disputes arising from the application of the system of arbitrary rescission of contract are expounded in detail. The third part puts forward some suggestions on the problems in practice and makes necessary legal rules to guarantee the security of transaction and the stability of economic order. Some problems have arisen in the process of application of the right of arbitrary rescission of a contract, which has caused great controversy. For example, the validity of the right of arbitrary rescission of a contract is stipulated by law, this paper holds that the right of arbitrary rescission of a contract is a special right stipulated by law. If the parties are allowed to agree to set or abandon the right of rescission, it will inevitably damage the certainty and stability of the law, and even affect the stability of the economic order. In addition, the scope of compensation after the exercise of the right of arbitrary rescission, this article also thinks that the scope is limited to the actual loss and does not contain the available benefits, otherwise the contract will be tantamount to actual performance, which is inconsistent with the legislative concept of the right of arbitrary rescission of the contract. In view of these problems, the law should be relatively perfect and meticulous, in order to play a good guiding role in practice, achieve the purpose of resolving disputes and encouraging transactions.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6
【参考文献】
相关期刊论文 前10条
1 马忠法;冯凯;;委托合同任意解除的赔偿责任[J];东方法学;2009年03期
2 崔建远;合同解除的疑问与释答[J];法学;2005年09期
3 吕巧珍;;委托合同中任意解除权的限制[J];法学;2006年09期
4 宋超;;从委托合同的视角看演艺经纪合约的性质[J];法制与经济(下旬);2010年05期
5 郑秋阳;;合同中约定任意解除权条款法律问题探析[J];法制与经济(下旬);2010年11期
6 王盈;刘觅;;对投保人合同解除权的反思与立法建议[J];海南金融;2007年04期
7 崔建远;龙俊;;委托合同的任意解除权及其限制——“上海盘起诉盘起工业案”判决的评释[J];法学研究;2008年06期
8 陈柳青;;浅议承揽合同定作人之任意解除权[J];理论观察;2010年04期
9 彭彩虹;;浅析演艺经纪合同解除纠纷的司法处理[J];商场现代化;2009年13期
10 王茂祺;;罗马法与法国法中的实际履行[J];求索;2010年07期
相关硕士学位论文 前2条
1 王启军;合同解除权问题研究[D];对外经济贸易大学;2006年
2 梁飚;包价旅游合同变更与解除研究[D];广西师范大学;2007年
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