论合同任意解除权的规制

发布时间：2018-09-10 08:53

【摘要】：我国在合同法总则部分与分则有名合同部分的任意解除权是为了实现法的公平、自由和效率原则和借鉴英美法系的效率违约制度和大陆法系任意解除权的内涵规定,任意解除权一项特殊法定解除权仅可应用于部分特殊的合同。只适用于某些特定的合同类型,不以对方违约为前提,但一般需要给对方一定赔偿。享有任意解除权的主体也只是某些特定的当事人。当下我国对其研究主要是针对合同法分则的有关条文和部分有名合同而缺乏系统性、完整性,这样法律规范就会出现不确定性致使当事人不可准确预估任意解除权的行使方式以及产生的法律后果,同时在司法实践中也会出现适用问题而最终无法实现任意解除权的价值。目前对任意解除权集中于应然层面分析而且总体和系统研究上都为数不多。然而在现实生活中合同任意解除权行使中存在着很多问题,如任意解除的滥用及任意解除行使中的不当。本文对任意解除权的研究是在归纳整理前人成果的之上展开的,以期探讨其规制方法并提出相关立法建议。文中从理论上介绍和探讨了任意解除权相关的理论问题。首先将任意解除权与一般法定解除权对比后分析界定了其法律性质。合同任意解除权是具有不可分型的形成权,相对于一般形成权在给对方造成损失时一般应给与一定的赔偿。任意解除权的行使,表面上属合法行使权利,本质上却具有违约的特征。任意解除权的设立是实质上是基于对法的自由、效率和公平价值平衡。根据合同对法的价值追求的不同对任意解除权合同进行相应的分类,文中引用案例分析后发现合同任意解除权行使中存在着适用范围、损害赔偿范围的不确定性和约定排除任意解除权等问题。因此对合同任意解除权行进行规制有着重要的理论和现实意义。不同类型合同,行使任意解除权的主体和对象、行使方式、行使范围和赔偿损失的范围均有所不同,不能统一制定一个标准,需要分类讨论。文中讨论的重点是对任意解除权行使的规制。笔者从任意解除权行使中的各种问题人手,探讨其在行使主体、客体,行使时间和行使方式上相应的规则方法,并提出相关的立法建议。在该权利的赔偿范围上应区分为未履行和已经部分履行而直接确定是赔偿履行或者信赖利益损失;未履行的仅赔偿信赖利益损失;而部分履行下,对已履行的部分赔偿履行利益损失,对未履行部分则不需要赔偿履行利益损失以区别于违约赔偿而只须赔偿信赖利益损失。同时不同合同类型,赔偿范围也有所不同。
[Abstract]:In our country, the right of arbitrary rescission of the part of contract law in the general principle of contract law and the part of famous part of the subclause is for the purpose of realizing the fairness, freedom and efficiency principle of law, and drawing lessons from the system of efficiency breach of contract in common law system and the intension stipulation of civil law system of arbitrary rescission right. A special legal right of rescission can only be applied to some special contracts. It only applies to certain types of contract, not on the premise of breach of contract, but generally needs to compensate the other party. The subject who enjoys the right of arbitrary rescission is only certain parties. At present, the research on it in our country is mainly aimed at the relevant articles of the special provisions of the contract law and some famous contracts, but lack of systematicness and integrality. In this way, the uncertainty of the legal norms will lead to the uncertainty of the parties can not accurately estimate the exercise of the right of arbitrary rescission and the legal consequences, at the same time, there will be problems in the judicial practice and the value of the right of arbitrary rescission can not be realized. At present, the power of arbitrary rescission is focused on the analysis of the ought level and few on the whole and the system. However, in real life, there are many problems in the exercise of the right of arbitrary rescission, such as abuse of arbitrary rescission and improper exercise of arbitrary rescission. In this paper, the research on the right of arbitrary rescission is carried out on the basis of summing up the previous achievements, with a view to discussing the methods of its regulation and putting forward some relevant legislative suggestions. In this paper, the theoretical problems related to the right of arbitrary rescission are introduced and discussed theoretically. Firstly, the legal nature of arbitrary right of rescission is defined by comparing it with general legal right of rescission. The right of arbitrary rescission of contract is a kind of formation right which can not be classified, and it should be compensated when it causes damage to the other party. The exercise of the right of arbitrary rescission is legally exercised on the surface, but it has the characteristic of breach of contract in essence. The establishment of the right of arbitrary rescission is based on the balance of freedom, efficiency and fair value of law. According to the different value pursuit of the contract to the law, the contract of the right of arbitrary rescission is classified accordingly. The case analysis shows that there is a scope of application in the exercise of the right of arbitrary rescission of the contract. The uncertainty of the scope of damages and the agreement to exclude the right of arbitrary rescission and so on. Therefore, it has important theoretical and practical significance to regulate the right to rescind the contract arbitrarily. Different types of contracts, the subject and object of exercising the right of arbitrary rescission, the way of exercise, the scope of exercise and the scope of compensation for losses are all different, so it is not possible to formulate a unified standard, which needs to be classified and discussed. The emphasis of this paper is on the regulation of the exercise of arbitrary rescission right. The author discusses the corresponding rules and methods in the exercise of subject, object, time and mode of exercise from various problems in the exercise of arbitrary rescission right, and puts forward relevant legislative suggestions. The scope of compensation for this right shall be divided into non-performance and partial performance, and shall be directly determined as compensation for performance or loss of reliance interest; failure to perform shall only compensate for loss of reliance interest; and under partial performance, It is necessary to compensate for the loss of performance interest for the part that has been performed and for the part that has not been performed to compensate for the loss of interest of performance in order to distinguish it from the compensation for breach of contract, but only to compensate for the loss of interest in trust. At the same time, different types of contracts, the scope of compensation is also different.
【学位授予单位】：华中科技大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.6

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