论预期违约与不安抗辩的冲突与取舍

发布时间：2019-03-25 11:19

【摘要】：为了解决合同生效后至履行前发生在合同履行上的危险,充分体现诚实信用原则及公平原则,避免先履行的一方当事人蒙受损失,不同法系建立了各自独特的相关法律制度。在大陆法系体现为不安抗辩权制度,在英美法系则体现为预期违约制度。《中华人民共和国合同法》借鉴了大陆法传统的基本理论,在第六十八条和第六十九条规定了不安抗辩权制度,同时又吸收了英美法的预期违约制度,在第九十四条和第一百零八条进行了规定。由于两大法系对罗马法的不同继承,产生于不同法律历史传统的类似制度在同一部法律里面很难彻底融合与同化。结果这两种制度在《合同法》中不仅不能够融会贯通,实现立法者所期待的优势互补,相反却造成适用中的冲突和不公等诸方面的问题。如何处理二者矛盾并妥当安排好对债权人履行期待落空的救济途径,本文在分析借鉴的基础上提出相关看法。
[Abstract]:In order to solve the risk that the contract is in the performance of the contract after the contract comes into effect, it fully reflects the principle of good faith and the principle of fairness, so as to avoid the loss of the party to which the contract is performed first, and establish a unique relevant legal system for different parties. In the continental law system, it is embodied in the system of unsettling and the right of defense, and in the common law system it is embodied in the system of anticipatory breach of contract. The Contract Law of the People's Republic of China refers to the basic theory of the traditional Chinese law. In articles 68 and 69, the system of unsettling the right of defense is established, and the expected default system of the Anglo-American law is also absorbed, and the provisions of Article 94 and Article 108 are set out. Because of the different inheritance of the two law systems to the Roman law, the similar system, which is produced in different legal and historical traditions, is very difficult to integrate and assimilate in the same law. As a result, the two systems are not only able to melt through in the Contract Law> to realize the complementary advantages of the legislators, but also to the problems of conflict and injustice in the application. How to deal with the contradiction and properly arrange the relief way to the creditor to fulfill the expectation of failure, this paper put forward the relevant view on the basis of the analysis.
【作者单位】：河南农业大学文法学院;
【分类号】：D923.6

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