双务合同瑕疵后得利返还制度的体系整合与教义学结构

On the Systematic Integration and Dogmatic Structur e of the Profit Restitution System after the Defective Performance of the Bilateral Contract

《中华人民共和国民法典》第986条所规定的善意得利人得利返还是规范得利返还的一般规范,不宜直接作为双务合同瑕疵后得利返还的规范基础。双务合同瑕疵后得利返还的规范基础应为《中华人民共和国民法典》第157条第1句以及第566条第1款,前者规范合同缔约阶段的瑕疵,后者规范合同履行阶段的瑕疵,基于功能一致性考虑,二者在返还效果上应作等同处理。原物返还时,受领一方的返还包含原物、孳息以及用益;给付一方的返还包含价金以及利息、受领一方为标的物支出的必要费用以及有益费用,双方可以主张同时履行抗辩。返还不能的类型可以区分为自始返还不能以及嗣后返还不能,价额返还的范围以受领一方的对待给付为界限,计算标准原则上以交易时约定的价款为基础。免价额返还义务的情形包含三种,即给付一方违反合同义务导致合同瑕疵、可归责于给付一方的行为导致原物返还不能、受领的标的物在给付一方仍会发生毁损灭失。

The profit restitution made by a bona fide beneficiary provided for in Article 986 of the Civil Code is a general norm governing the benefit restitution and shall not be directly deemed as a normative basis for the benefit restitution after defective performance of a bilateral contract.The normative basis for the benefit restitution after defective performance of a bilateral contract should be the first sentence of Article 157 and Paragraph 1 of Article 566 of the Civil Code,with the former regulating defects in the contracting stage and the latter regulating defects in the performance stage of the contract,and based on functional consistency,the two should be treated as equivalent in terms of the restitution effect.In the case of the restitution of the original object,the benefit-receiving party shall return the original object,the yield and usufrust,while the benefit-giving party shall return the money,interest,the necessary expense and improvement cost incurred by the benefit-receiving party for the subject matter,and both parties may claim the exception of non-performance.The situations of being impossible to return can be categorized as ab initio and supervening,and the money returned shall not exceed the reciprocal performance which should be made by benefit-receiving party and is in principle calculated on the basis of the price agreed at the time of the transaction.There are three types of exemption from the obligation to return the money:a breach of contractual obligations by the benefit-giving party resulting in a contractual defect,an act attributable to the benefit-giving party resulting in a failure to return the original object,and the destruction or loss of the received subject matter even it is at the benefit-giving party's.