| 摘要: |
| 违约方能否解除合同的问题在理论上有争议也有共识，其关键在于具体条件和程序的设计。《合同编草案》第353条第3款规定的不能履行与目的不达的双重构造模式既无比较法依据，又与我国既有规则相悖，且易造成适用的混乱，不能履行的单独构造不能解决违约方解除合同的主要争议情形问题，唯有目的不达的单独构造能消解上述问题。解除权人不行使解除权不符合权利滥用要件，但因其构成合同僵局而违反效率价值；解除权人不行使解除权只满足显失公平客观要件，故其表述应当修改。诉讼或者仲裁程序的限制符合违约方解除合同的特殊性，相比通知解除，其有利于公正、有效地解决相关争议。 |
| 关键词: 不能履行 目的不达 权利滥用 显失公平 |
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| Conditions for the Defaulting Party to Terminate the Contract： Comment on Paragraph 3 of Article 353 of the Draft Civil Code |
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Wang Lizhi & Sun Xuezhi
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| Abstract: |
| Whether the defaulting party can terminate the contract is controversial, but still has a consensus in theory. The key point is the design of the specific conditions and procedures. There are three conditions for the defaulting party according to Paragraph 3 of Article 353 of the Draft Civil Code： the objectives of the contract cannot be realized due to its impossibility of performance; the fact that the party with the right of dissolution cannot dissolve the contract constitutes the abuse of civil rights, which is also obviously unfair to the other party; there is a proceeding of filing a lawsuit or requesting for arbitration. In other words, the contract should be impossible to perform and its purpose should be unfeasible. However, this mode has no basis through comparative studies of law, and this is even inconsistent with the current related provisions of laws in China. Furthermore, this would create confusion in its application. This mode cannot resolve the major problems of disputes on the termination by the defaulting party. It is argued that only the mode with the element frustration of purpose can solve the problems mentioned above. The fact that the party with the right of dissolution cannot dissolve the contract constitutes the deadlock of the contract instead of the abuse of civil rights, which violates the value of efficiency. Meanwhile, it only matches the objective element of unfairness, so it needs to be modified. The way to limit the proceeding of filing a lawsuit or requesting for arbitration conforms to the particularity of the termination by the defaulting party. Compared with the termination by notification, this way is more effective to settle disputes fairly and effectively. |
| Key words: Impossibility of Performance, Frustration of Purpose, Abuse of Civil Rights, Obvious Unfairness |
