合同解除规则的细化完善与司法适用

Refinement and Judicial Application of the Rules on Contractual Termination

《合同编通则解释》就合同解除领域中具有一定普遍性的几个问题,遵循意思自治原则与维护合同正义、实现纠纷的实质性解决的导向作了细化规定,明确了当事人主张行使解除权但不符合相应条件而对方同意解除等情形可以依法适用协议解除的规则,强调了通知解除合同的情形下应当对是否符合解除权行使的条件予以审查的规则,当事人撤诉后再次起诉主张解除合同的,原则上应当以再次起诉的起诉状副本送达对方时解除。对于显著轻微违约时能否限制约定解除权行使的问题,虽然《合同编通则解释》最终没有规定,但在具体适用中可以参考本司法解释起草过程中的一些考虑,在尊重当事人真实意思的前提下,体系化适用《民法典》第132条关于权利滥用之禁止的规定,采用动态系统论的方法,对约定解除权的行使予以适当限制,同时通过让违约方依法承担违约责任的方式来切实做好对守约方的救济。

The Interpretation of the General Principles of Contracts has made detailed provisions on several general issues in the field of contract termination,following the principle of autonomy of meaning and the direction of maintaining contractual justice and realizing substantive settlement of disputes,and has clarified that the parties claiming to exercise the right to terminate the contract,but failing to comply with the corresponding conditions,and the other party agreeing to terminate the contract,etc.,can be applied in accordance with the rule of termination by agreement.The rule that the conditions for exercising the right of rescission should be examined in the case of notice of rescission were emphasized.If the party withdraws the lawsuit and then sues again for rescission of the contract,the rescission should,in principle,be carried out when a copy of a bill of complaint of the second lawsuit is served on the other party.As to the question of whether it is possible to restrict the exercise of the right of rescission in the case of a significant minor breach of contract,although the Interpretation of the General Principles of the Contract did not stipulate in the end,it is necessary to refer to some of the considerations in the process of drafting this judicial interpretation for specific application,and to systematically apply the provision of the prohibition of the abuse of rights in Article 132 of the Civil Code under the premise of respect the true meaning of the parties,and to adopt a dynamic systematic approach to appropriately limit the exercise of the right of rescission of this agreement.The exercise of the right of termination shall be appropriately restricted,and the relief to the contractual party shall be effectively provided by making the defaulting party liable in accordance with the law.