析根本违约

Analysis of fundamental breach of contract

市场经济条件下,在合同履行过程中,一方当事人根本违约的行为是普遍存在的。但我国《合同法》对根本违约行为构成、责任与补救等方面规定不够具体、明确。笔者简析了英国普通法、美国判例法,指出根本违约不同于一般违约,构成要件十分严格,应谨慎对待,从严把握根本违约的构成要件。区分根本违约与非根本违约、一般根本违约与不可抗力的根本违约。既要防止根本违约的滥用,又要对违约情况全面把握。对《合同法》违约责任部分的完善提出建议,以利于合同当事人交易时认识把握,便于法律、仲裁机关处理合同纠纷。

Under the market economy conditions, in the performance of the contract, the behavior of fundamental breach of one of the parties is ubiquitous. However, the provisions of such areas as the formation, liability and remedy are not specific and clear in China＇s ＂Contract Law＂. The author briefly analyzed the English Common Law and the United States Case Law, pointed out that the fundamental breach of contract is different from ordinary breach of contract, the elements are very strict and should be treated with caution, and strictly grasped. Distinguish the fundamental breach of contract and non-fundamental breach of contract, the general fundamental breach of the fundamental breach of contract with force majeure. It is necessary to prevent the abuse of a fundamental breach of contract, but also have a comprehensive grasp of the non-compliance. Give proposals for the perfection of ＂Contract Law＂ to facilitate the contract parties to understand and master during the transaction and the law and arbitration organs to handle contract disputes.