我国给付不能制度体系之考察

Research on the Chinese Impossible Performance System

我国给付障碍统一构成要件规则来自于德国"不履行"理论,但合同法并未统一法律效果,也未根据法律效果结构请求权基础,履行不能的制度功能并未因为统一构成要件而消失。在履行不能制度功能上,由于免责事由规定过窄,出现了债权人与债务人利益失衡的情形,而且没有规定对待给付当然消灭规则。在履行不能类型上,没有规定自始不能、部分不能、暂时不能、人身不能等规则,对此需要通过理论继受加以补充,在法律上还要明确经济上不能与情势变更之间的关系。在履行不能与瑕疵担保规则、风险负担规则竞合的情况下,应优先适用瑕疵担保规则、风险负担规则。

The rule of the unitary conditions by breach of contracts comes from Germany law.But the contract law neither unifies the remedial measures,nor takes them as guideline to settle the rules of claim;therefore the unitary conditions by breach of contracts have no influence of the functions of impossibility of performance.The extent of the exemption of liability is so narrow and limited.The interests between parties are out of balance.There is also no rule about dissolving of the performance of counterpart.The contract law does not regulate the initial,partial,personal impossibility of performance and so on.The author suggests that they should be accepted by the law through adoption of theories.The relation between economic impossibility of performance and change in circumstances（hardship） must be defined in the law. At the end of the article the relations between impossibility of performance and other institutions are discussed.If the impossibility of performance and warranty liability/risk bearing exists side by side,the latter has priority.