违约方的合同解除问题
发布时间：2018-11-24 12:39
【摘要】：主流观点认为,我国《合同法》第九十四条规定的法定解除合同,只有守约方才有权行使,违约方不享有据此规定解除合同的权利。司法实践中,存在为数不少的违约方中途违约并要求解除合同的案件,如果对违约方违约的主观动机和具体情形一律不作区分,完全否定违约方的合同解除权,可能会造成个案的不公和资源的浪费,使合同双方当事人的利益失衡,有违公平与诚实信用原则。本论文的写作正是缘于司法实践中的一个案件而引发的思考。论文在内容结构上共分五章,第一章为合同解除权的现行法规定梳理,主要介绍了我国现行法律特别是《合同法》关于合同解除的规定。第二章从合同内在价值、诚实信用原则、实际履行的局限性、法律解释、司法实践五个角度,论证赋予违约方合同解除权具有正当性。在合同内在价值层面,赋予违约方合同解除权是合同自由、公平、效率价值的体现。从诚实信用原则角度,违约方行使合同解除权符合诚实信用原则谋求各方利益平衡的内涵。从实际履行的局限性角度,实际履行作为违约责任的承担方式,具有履行成本高、执行困难以及社会效率损失的缺陷。从法律解释的角度,虽然在我国《合同法》中没有明确规定违约方行使法定解除权的法律依据,但是也没有明确规定违约方不能行使法定解除权,而且《合同法》相关条款为违约方行使合同解除权提供了间接适用空间。从司法实践角度,通过对赋予违约方合同解除权的典型案例新宇公司诉冯玉梅商铺买卖合同纠纷一案的分析,论证赋予违约方合同解除权在我国的司法实践中得到了一定程度的承认和执行。第三章着重界定违约方合同解除权的行使条件,合同严守是原则,合同解除是例外,民法的诚实信用原则不允许当事人因违约而获利,尽管赋予违约方合同解除权有其正当性,但违约方无解除权是基本原则,因此必须严格限定违约方行使合同解除权的适用条件,只有在特定情形下才能赋予违约方合同解除权,即同时符合合同标的物为种类物、继续履行存在障碍、违约方没有过错这三个条件。第四章论述违约方行使合同解除权的方式,违约方解除合同的权利在性质上属于请求权,且适用于特定的条件,在现行法律没有明确规定的情况下,必须通过向法院提起诉讼的方式行使,如此才能体现对违约方行使合同解除权的严格限制,有利于纠纷的公正解决和终局处理。第五章论述违约方解除合同的违约损害赔偿责任,赋予违约方特定情形下解除合同的权利,需要违约方对守约方承担违约损害赔偿责任,以充分补偿守约方因其违约所遭受的损失。违约方解除合同的损害赔偿范围应为守约方因违约方的违约行为所遭受的全部损失,即完全赔偿原则,但应受确定性规则、可预见性规则、减少损失规则、损益相抵规则的限制。
[Abstract]:The mainstream point of view is that the statutory rescission of the contract stipulated in Article 94 of the contract Law of China shall only be exercised by the parties who abide by the contract, and the breaching party does not have the right to terminate the contract accordingly. In judicial practice, there are quite a number of cases in which the breaching party breaks the contract midway and demands the rescission of the contract. If no distinction is made between the subjective motive and the specific circumstances of the breach of contract, the breaching party's right to terminate the contract is completely denied. It may lead to unfair cases and waste of resources, make the interests of both parties to the contract unbalanced, and violate the principles of fairness and good faith. The writing of this thesis is just a reflection caused by a case in judicial practice. The paper is divided into five chapters in content structure. The first chapter is about the current law of the right of rescission of contract. It mainly introduces the current law of our country, especially the provisions of contract law on the dissolution of contract. The second chapter from the contract intrinsic value, the good faith principle, the actual performance limitation, the legal explanation, the judicial practice five angles, demonstrates gives the breach party contract rescission right to have the legitimacy. At the level of contract intrinsic value, giving the breaching party the right to terminate the contract is the embodiment of contract freedom, fairness and efficiency value. From the perspective of the principle of good faith, the breaching party's right to rescind the contract conforms to the principle of good faith to seek the connotation of balancing the interests of all parties. From the point of view of the limitation of actual performance, as a way to assume the responsibility of breach of contract, has the defects of high cost of performance, difficulty of execution and loss of social efficiency. From the angle of legal interpretation, although there is no clear legal basis for the breaching party to exercise the statutory right of rescission in the contract Law of our country, there is also no clear stipulation that the breaching party cannot exercise the statutory right of rescission. Moreover, the relevant articles of contract Law provide indirect application space for breaching party to exercise the right of rescission of contract. From the angle of judicial practice, through the analysis of the case of Xinyu Company v. Feng Yumei Shop Sale contract dispute, the typical case of abrogation of contract is given to the breaching party. The argument gives the breaching party the right to rescind the contract to a certain extent in the judicial practice of our country. The third chapter focuses on defining the conditions under which the breaching party's right to rescind the contract is exercised, the strict observance of the contract is the principle, and the dissolution of the contract is the exception. The principle of good faith in civil law does not allow the party concerned to profit from the breach of contract, although it is justified to grant the party the right to rescind the contract. However, the non-rescission right of the breaching party is the basic principle, so it is necessary to strictly define the applicable conditions for the breaching party to exercise the right to rescind the contract. Only under certain circumstances can the breaching party be given the right to rescind the contract, that is, the subject matter of the contract is the kind of thing that accords with the contract subject matter. There is an obstacle to continuing performance, and the defaulting party is not at fault. The fourth chapter discusses the way for the breaching party to exercise the right to rescind the contract. The right of the breaching party to terminate the contract belongs to the right of claim in nature and is applicable to specific conditions. In order to reflect the strict restriction on the breaching party's right to rescind the contract, it is necessary to bring the lawsuit to the court, which is conducive to the just settlement and final settlement of the dispute. The fifth chapter discusses the breaching party to cancel the contract for breach of contract damage liability, give the breaching party the right to cancel the contract under the specific circumstances, need the breaching party to assume the breach of contract damage compensation liability, To compensate fully for the damage suffered by the compliance party as a result of its breach of contract. The scope of indemnity for breach of contract by breaching party shall be all losses suffered by the defaulting party as a result of breach of contract, that is, the principle of full compensation, but shall be subject to the rules of certainty, predictability and reduction of loss, The limitation of the profit and loss offset rule.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6
本文编号：2353757
[Abstract]:The mainstream point of view is that the statutory rescission of the contract stipulated in Article 94 of the contract Law of China shall only be exercised by the parties who abide by the contract, and the breaching party does not have the right to terminate the contract accordingly. In judicial practice, there are quite a number of cases in which the breaching party breaks the contract midway and demands the rescission of the contract. If no distinction is made between the subjective motive and the specific circumstances of the breach of contract, the breaching party's right to terminate the contract is completely denied. It may lead to unfair cases and waste of resources, make the interests of both parties to the contract unbalanced, and violate the principles of fairness and good faith. The writing of this thesis is just a reflection caused by a case in judicial practice. The paper is divided into five chapters in content structure. The first chapter is about the current law of the right of rescission of contract. It mainly introduces the current law of our country, especially the provisions of contract law on the dissolution of contract. The second chapter from the contract intrinsic value, the good faith principle, the actual performance limitation, the legal explanation, the judicial practice five angles, demonstrates gives the breach party contract rescission right to have the legitimacy. At the level of contract intrinsic value, giving the breaching party the right to terminate the contract is the embodiment of contract freedom, fairness and efficiency value. From the perspective of the principle of good faith, the breaching party's right to rescind the contract conforms to the principle of good faith to seek the connotation of balancing the interests of all parties. From the point of view of the limitation of actual performance, as a way to assume the responsibility of breach of contract, has the defects of high cost of performance, difficulty of execution and loss of social efficiency. From the angle of legal interpretation, although there is no clear legal basis for the breaching party to exercise the statutory right of rescission in the contract Law of our country, there is also no clear stipulation that the breaching party cannot exercise the statutory right of rescission. Moreover, the relevant articles of contract Law provide indirect application space for breaching party to exercise the right of rescission of contract. From the angle of judicial practice, through the analysis of the case of Xinyu Company v. Feng Yumei Shop Sale contract dispute, the typical case of abrogation of contract is given to the breaching party. The argument gives the breaching party the right to rescind the contract to a certain extent in the judicial practice of our country. The third chapter focuses on defining the conditions under which the breaching party's right to rescind the contract is exercised, the strict observance of the contract is the principle, and the dissolution of the contract is the exception. The principle of good faith in civil law does not allow the party concerned to profit from the breach of contract, although it is justified to grant the party the right to rescind the contract. However, the non-rescission right of the breaching party is the basic principle, so it is necessary to strictly define the applicable conditions for the breaching party to exercise the right to rescind the contract. Only under certain circumstances can the breaching party be given the right to rescind the contract, that is, the subject matter of the contract is the kind of thing that accords with the contract subject matter. There is an obstacle to continuing performance, and the defaulting party is not at fault. The fourth chapter discusses the way for the breaching party to exercise the right to rescind the contract. The right of the breaching party to terminate the contract belongs to the right of claim in nature and is applicable to specific conditions. In order to reflect the strict restriction on the breaching party's right to rescind the contract, it is necessary to bring the lawsuit to the court, which is conducive to the just settlement and final settlement of the dispute. The fifth chapter discusses the breaching party to cancel the contract for breach of contract damage liability, give the breaching party the right to cancel the contract under the specific circumstances, need the breaching party to assume the breach of contract damage compensation liability, To compensate fully for the damage suffered by the compliance party as a result of its breach of contract. The scope of indemnity for breach of contract by breaching party shall be all losses suffered by the defaulting party as a result of breach of contract, that is, the principle of full compensation, but shall be subject to the rules of certainty, predictability and reduction of loss, The limitation of the profit and loss offset rule.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6
【参考文献】
相关期刊论文 前1条
1 崔建远;;合同解除探微[J];江淮论坛;2011年06期
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