《合同法》不安抗辩权与预期违约制度之辨析
发布时间：2018-12-18 10:46
【摘要】：现代社会瞬息万变,对于那些不能即时履行的合同,在有效成立后至履行期到来前,有可能出现很多无法预测的新情况新变化,而使得合同到期无法或难以履行。同为保护合同债权期待而设置的法律制度,不安抗辩权和预期违约各自在大陆法系及英美法系中发挥着举足轻重的作用。 我国虽属大陆法系,但1999年颁布的《合同法》在第68、69条和第94条第2款、第108条中创造性地吸收、借鉴了大陆法系不安抗辩权制度以及英美法系预期违约制度的精华,将分属于不同法系的两种制度融合于一部法律之中,形成了具有中国特色的期前救济规则。这在进一步防范合同风险,保障交易安全以及维护当事人的权益等方面的确具有积极意义。但自从合同法颁布后,学界褒贬不一,对其的争论亦从未停止过。 本文以从理论的完整性和逻辑的合理性上厘清我国《合同法》中的不安抗辩权及预期违约制度为目的,首先,结合历史考证法,分别对两种制度进行了系统研究,包括它们的内涵、价值理念、在立法或判例上的发展等,并对它们各自的适用条件以及相应的救济规则做出总结归纳。其次,主要运用比较研究的方法考察两种制度之间的异同,指出作为分属不同法系、继承不同法律传统的两种制度,尽管有些形似,事实上却在价值理念、具体制度、表现形式等方面具有质的区别。再次,结合《合同法》的规定,对我国该种体系安排是否合理妥当进行分析评价。最后,在分析学者们争论的焦点问题基础上,指出我国《合同法》相关规定的不足并就如何进一步完善提出建议,即,我国《合同法》完全可以通过对不安抗辩权制度本身以及与之密切相关的制度,如给付不能、大陆法上的拒绝履行制度、合同法定解除制度等的调整,从内外两方面克服传统不安抗辩权制度的大部分缺陷。从而在回归大陆法系传统的同时,通过完善现行立法以及配套的司法解释,采纳预期违约制度的合理因素,取长补短,既发挥两种制度应有的作用,同时避免冲突和矛盾,从而更有效地保护合同双方的利益,起到保障交易安全、提高交易效率的作用,并在司法实践中避免理解和运用上的混乱。
[Abstract]:Modern society is changing rapidly, for those contracts that can not be performed immediately, many unpredictable new situations and new changes may occur after effective establishment until the arrival of the performance period, which makes the contract expired or difficult to perform. In the legal system set up for the purpose of protecting the expectation of contractual creditor's rights, the right of uneasy defense and the anticipatory breach of contract play an important role in the civil law system and the common law system respectively. Although our country belongs to the civil law system, the contract Law promulgated in 1999 is absorbed creatively in Article 6869, Article 94, paragraph 2, Article 108, and draws lessons from the essence of the system of the right of uneasiness of the Civil Law system and the system of anticipatory breach of contract in the common law system. The two systems belonging to different legal systems are merged into one law, and the pre-period relief rules with Chinese characteristics are formed. It has positive significance in preventing contract risk, protecting transaction security and protecting the rights and interests of the parties. However, since the promulgation of contract Law, scholars have been mixed, and the controversy about it has never stopped. The purpose of this paper is to clarify the uneasiness right of defense and the system of anticipatory breach of contract in the light of the integrity of theory and the reasonableness of logic. Firstly, combining with historical textual research, this paper makes a systematic study of the two systems. It includes their connotation, value concept, the development of legislation or case law, and summarizes their respective applicable conditions and corresponding relief rules. Secondly, we mainly use the method of comparative study to investigate the similarities and differences between the two systems, and point out that the two systems, which belong to different legal systems and inherit different legal traditions, although some of them are similar in shape, in fact, are in the concept of value and the specific system. There is a qualitative difference in the form of expression. Thirdly, according to the provisions of contract Law, this paper analyzes and evaluates the rationality and appropriateness of the system arrangement in China. Finally, on the basis of analyzing the focal points of the scholars, this paper points out the deficiencies of the relevant provisions of the contract Law of our country and puts forward some suggestions on how to further improve them, that is, China's contract Law can adjust the system of the right of disquiet defense itself and the system closely related to it, such as the failure to pay, the system of refusal to perform in mainland law, the system of legal rescission of contracts, and so on. From both internal and external aspects to overcome most of the defects of the traditional system of uneasiness right of defense. In order to return to the tradition of the civil law system, through perfecting the current legislation and supporting judicial interpretation, adopting the reasonable factors of anticipatory breach of contract system, learning from each other, not only the two systems should play their due role, but also to avoid conflicts and contradictions. Thus more effectively protect the interests of both parties to the contract, play a role in ensuring the security of transactions, improve the efficiency of transactions, and avoid confusion in understanding and application in judicial practice.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923.6
本文编号：2385731
[Abstract]:Modern society is changing rapidly, for those contracts that can not be performed immediately, many unpredictable new situations and new changes may occur after effective establishment until the arrival of the performance period, which makes the contract expired or difficult to perform. In the legal system set up for the purpose of protecting the expectation of contractual creditor's rights, the right of uneasy defense and the anticipatory breach of contract play an important role in the civil law system and the common law system respectively. Although our country belongs to the civil law system, the contract Law promulgated in 1999 is absorbed creatively in Article 6869, Article 94, paragraph 2, Article 108, and draws lessons from the essence of the system of the right of uneasiness of the Civil Law system and the system of anticipatory breach of contract in the common law system. The two systems belonging to different legal systems are merged into one law, and the pre-period relief rules with Chinese characteristics are formed. It has positive significance in preventing contract risk, protecting transaction security and protecting the rights and interests of the parties. However, since the promulgation of contract Law, scholars have been mixed, and the controversy about it has never stopped. The purpose of this paper is to clarify the uneasiness right of defense and the system of anticipatory breach of contract in the light of the integrity of theory and the reasonableness of logic. Firstly, combining with historical textual research, this paper makes a systematic study of the two systems. It includes their connotation, value concept, the development of legislation or case law, and summarizes their respective applicable conditions and corresponding relief rules. Secondly, we mainly use the method of comparative study to investigate the similarities and differences between the two systems, and point out that the two systems, which belong to different legal systems and inherit different legal traditions, although some of them are similar in shape, in fact, are in the concept of value and the specific system. There is a qualitative difference in the form of expression. Thirdly, according to the provisions of contract Law, this paper analyzes and evaluates the rationality and appropriateness of the system arrangement in China. Finally, on the basis of analyzing the focal points of the scholars, this paper points out the deficiencies of the relevant provisions of the contract Law of our country and puts forward some suggestions on how to further improve them, that is, China's contract Law can adjust the system of the right of disquiet defense itself and the system closely related to it, such as the failure to pay, the system of refusal to perform in mainland law, the system of legal rescission of contracts, and so on. From both internal and external aspects to overcome most of the defects of the traditional system of uneasiness right of defense. In order to return to the tradition of the civil law system, through perfecting the current legislation and supporting judicial interpretation, adopting the reasonable factors of anticipatory breach of contract system, learning from each other, not only the two systems should play their due role, but also to avoid conflicts and contradictions. Thus more effectively protect the interests of both parties to the contract, play a role in ensuring the security of transactions, improve the efficiency of transactions, and avoid confusion in understanding and application in judicial practice.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923.6
【引证文献】
相关期刊论文 前2条
1 赵文萍;;论我国《合同法》中不安抗辩和预期违约的关系及其协调[J];哈尔滨学院学报;2016年11期
2 裴巧玲;;《合同法》中不安抗辩权浅析[J];黑龙江生态工程职业学院学报;2013年05期
相关硕士学位论文 前2条
1 高琴;默示预期违约研究[D];内蒙古大学;2014年
2 王宏娜;不安抗辩权的法律适用研究[D];华东政法大学;2013年
，本文编号：2385731
本文链接：https://www.wllwen.com/falvlunwen/hetongqiyue/2385731.html
