合同解除效力的比较研究

Comparative Study on the Legal Effect of Discharge of Contract

基于合同法的基本理念,一个合法有效的合同,应当尽可能地使之有效。然而,合同缔结之后实际履行过程中,难免会出现一方当事人基于这样或那样的原因违反合同义务或不可预见的情形,当合同业已成为当事人的沉疴时,若不允许其逃逸合同的束缚,对当事人要求难免过于苛刻,因此有必要赋予当事人以合同解除权。解除权行使的效力既是合同解除制度中的核心问题,也是世界合同法理论中一直成为极富争议的问题。

According to the basic principles of contract law, the effectiveness of a lawful and valid contract should be maintained as far as possible. However, during the actual implementation process of a contract having been signed, it＇s inevitable that any party may breach the contract due to various reasons or there may be unpredictable circumstance. If the above-mentioned breach of contract and unpredictable circumstance has caused serious or fundamental impact on the purpose of the contract, the contract then turns out to be a heavy burden for the relevant parties. Under this circumstance, the relevant parties may be put under excessively stringent condition and be likely to suffer from great loss. That is to say, it seems necessary to endow the parties with right for discharge of contract. The legal effect of discharge of contract is the core related issue, and also an issue having been under dispute in the theory of contract law.