论预期违约情形下的合同解除
发布时间：2018-08-05 12:57
【摘要】：合同解除是预期违约制度中一项重要的救济措施,由于预期违约制度存在 两种违约形式——明示预期违约和默示预期违约,而在默示违约中对合同解除 权的限制极为严格。但是我国《合同法》虽然规定明示预期违约和默示预期违 约,但有关两者的救济措施的规定比较粗糙,合同解除的操作性极差。本文旨 在从解除合同制度入手,试图从另一个角度来探讨预期违约的救济制度,以期 完善我国预期违约制度。 本文共分四章五大部分。 本文的引言部分主要介绍预期违约制度在英美法和《1980 年联合国国际货 物销售合同公约》中的规定。比较大陆法系的抗辩制度,预期违约制度的救济 制度则更为完善,合理。 第一章分三节,探讨合同解除在预期违约中的性质特征,及其意义;突出 合同解除在预期违约制度中的重要地位。文章认为合同解除并非违约责任形式, 而是一种救济措施,其意义在于体现合同法的公平,效益和安全原则。它是预 期违约制度中不可或缺的救济措施,没有它的存在,预期违约制度也将失去其 1 WP=4 存在的价值。 第二章,归纳预期违约制度情形下的合同解除制度适用条件,探讨在何种 条件下,适用合同解除。文章认为在明示预期违约中合同解除的适用条件是: 1. 一方当事人明确肯定地拒绝履约。2. 且拒绝履行的是合同的主要义务。在默 示预期违约中合同解除的适用条件是:1. 一方当事人以自己的行为表示不履行 合同主要义务。2. 不能提供充分的履约担保。 第三章,由三部分组成,第一节研究预期违约情形下合同解除的程序;第 二节,着重对合同解除的后果进行研究;第三节讨论合同解除与损害赔偿的关 系,并且讨论了损害赔偿的范围。 第四章,文章确认了我国《合同法》规定了明示和默示两种类型的预期违 约,探讨了我国合同法预期违约制度的优点及缺陷,尤其是在合同解除的条件 方面缺乏相应的规定,以至于操作性不强。 我国的《合同法》在沿袭大陆法系不安抗辩权制度的同时,引进了英美法 系的预期违约制度,不谛是我国合同法上的一大突破,形成了有中国特色的合 同制度,体现了大陆法系和英美法系融合的时代潮流,代表着世界民商法发展 的趋势。但是预期违约制度对我们来说,毕竟是一种崭新的制度,由于经验不 足,《合同法》中的预期违约制度仍然存在一些问题,需要通过司法解释和庭审 实践共同加以解决。
[Abstract]:Dissolution of contract is an important remedy in the system of anticipatory breach of contract, because the existence of anticipatory breach of contract exists.
The two form of breach is the express default and implied anticipatory breach, and the rescission of the contract in the implied breach.
The restriction of power is very strict. However, the contract law of China stipulates that the anticipatory breach of contract and the implied anticipatory breach are stipulated.
However, the provisions on relief measures are relatively rough and the operation of contract termination is very poor.
Starting from the system of rescission, we try to explore the relief system of anticipatory breach from another angle.
We should improve the system of anticipatory breach of contract in China.
This article is divided into four chapters and five parts.
The introduction of this article mainly introduces the expected breach of contract system in the Anglo American law and the United Nations international cargo in <1980.
The provisions of the Convention on Contracts for the sale of goods.
The system is more perfect and reasonable.
The first chapter is divided into three sections to discuss the nature and characteristics of contract dissolution in anticipatory breach, and its significance.
The dissolution of contract is an important position in the system of anticipatory breach.
It is a relief measure. Its significance lies in embody the principle of fairness, efficiency and safety in contract law.
The indispensable remedy measure in the system of breach of contract does not exist, and the system of anticipatory breach of contract will also be lost.
One
WP=4
The value of existence.
The second chapter sums up the applicable conditions of the contract rescission system under the circumstances of the anticipatory breach of contract system, and probes into what is in it.
Under the circumstances, the contract is rescinded. The article thinks that the conditions for the rescission of the contract in the express anticipatory breach of contract are:
1. a party explicitly and definitely refuses to perform.2. and refuses to perform the main obligation of the contract.
The conditions for application of contract dissolution in anticipatory breach of contract are: 1.
The main obligation of the contract.2. can not provide sufficient performance guarantee.
The third chapter is composed of three parts. The first section studies the procedure of contract rescission under the circumstances of anticipatory breach.
The two section focuses on the consequences of the rescission of contracts, and the third section discusses the relationship between contract rescission and damages.
The Department and the scope of damages are discussed.
In the fourth chapter, the article confirms that two types of expected violation are stipulated in the contract law.
About the advantages and disadvantages of the system of anticipatory breach of contract law in China, especially in terms of the rescission of contract.
The lack of corresponding provisions, so that the operability is not strong.
China's contract law has introduced the Anglo American Law in accordance with the system of the right of defense in the continental law system.
The system of anticipatory breach of contract is a major breakthrough in China's contract law, forming a combination with Chinese characteristics.
The same system embodies the trend of the times in the integration of the continental law system and the Anglo American law system, representing the development of civil and commercial law in the world.
However, the anticipatory breach of contract system is a new system for us, because experience is not.
There are still some problems in the anticipatory breach of contract in the contract law.
Practice together to solve it.
【学位授予单位】：华东政法学院
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D913
本文编号：2165863
[Abstract]:Dissolution of contract is an important remedy in the system of anticipatory breach of contract, because the existence of anticipatory breach of contract exists.
The two form of breach is the express default and implied anticipatory breach, and the rescission of the contract in the implied breach.
The restriction of power is very strict. However, the contract law of China stipulates that the anticipatory breach of contract and the implied anticipatory breach are stipulated.
However, the provisions on relief measures are relatively rough and the operation of contract termination is very poor.
Starting from the system of rescission, we try to explore the relief system of anticipatory breach from another angle.
We should improve the system of anticipatory breach of contract in China.
This article is divided into four chapters and five parts.
The introduction of this article mainly introduces the expected breach of contract system in the Anglo American law and the United Nations international cargo in <1980.
The provisions of the Convention on Contracts for the sale of goods.
The system is more perfect and reasonable.
The first chapter is divided into three sections to discuss the nature and characteristics of contract dissolution in anticipatory breach, and its significance.
The dissolution of contract is an important position in the system of anticipatory breach.
It is a relief measure. Its significance lies in embody the principle of fairness, efficiency and safety in contract law.
The indispensable remedy measure in the system of breach of contract does not exist, and the system of anticipatory breach of contract will also be lost.
One
WP=4
The value of existence.
The second chapter sums up the applicable conditions of the contract rescission system under the circumstances of the anticipatory breach of contract system, and probes into what is in it.
Under the circumstances, the contract is rescinded. The article thinks that the conditions for the rescission of the contract in the express anticipatory breach of contract are:
1. a party explicitly and definitely refuses to perform.2. and refuses to perform the main obligation of the contract.
The conditions for application of contract dissolution in anticipatory breach of contract are: 1.
The main obligation of the contract.2. can not provide sufficient performance guarantee.
The third chapter is composed of three parts. The first section studies the procedure of contract rescission under the circumstances of anticipatory breach.
The two section focuses on the consequences of the rescission of contracts, and the third section discusses the relationship between contract rescission and damages.
The Department and the scope of damages are discussed.
In the fourth chapter, the article confirms that two types of expected violation are stipulated in the contract law.
About the advantages and disadvantages of the system of anticipatory breach of contract law in China, especially in terms of the rescission of contract.
The lack of corresponding provisions, so that the operability is not strong.
China's contract law has introduced the Anglo American Law in accordance with the system of the right of defense in the continental law system.
The system of anticipatory breach of contract is a major breakthrough in China's contract law, forming a combination with Chinese characteristics.
The same system embodies the trend of the times in the integration of the continental law system and the Anglo American law system, representing the development of civil and commercial law in the world.
However, the anticipatory breach of contract system is a new system for us, because experience is not.
There are still some problems in the anticipatory breach of contract in the contract law.
Practice together to solve it.
【学位授予单位】：华东政法学院
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D913
【引证文献】
相关硕士学位论文 前1条
1 管元梓;论预期违约[D];外交学院;2009年
，本文编号：2165863
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