论预期违约与不安抗辩的冲突与取舍

On the Conflicts and Choice of Anticipatory Breach and Unstable Counterplea

为了解决合同生效后至履行前发生在合同履行上的危险,充分体现诚实信用原则及公平原则,避免先履行的一方当事人蒙受损失,不同法系建立了各自独特的相关法律制度。在大陆法系体现为不安抗辩权制度,在英美法系则体现为预期违约制度。《中华人民共和国合同法》借鉴了大陆法传统的基本理论,在第六十八条和第六十九条规定了不安抗辩权制度,同时又吸收了英美法的预期违约制度,在第九十四条和第一百零八条进行了规定。由于两大法系对罗马法的不同继承,产生于不同法律历史传统的类似制度在同一部法律里面很难彻底融合与同化。结果这两种制度在《合同法》中不仅不能够融会贯通,实现立法者所期待的优势互补,相反却造成适用中的冲突和不公等诸方面的问题。如何处理二者矛盾并妥当安排好对债权人履行期待落空的救济途径,本文在分析借鉴的基础上提出相关看法。

In order to solve the risk occurring after the contract has come into force and before it is executed, to fully embody the principle of good faith and fairness, to avoid risk happening to the party who has fulfilled the contract, different legal systems establish their own unique legal system. In the civil law, it is embodied in the right for unstable counterplea, in Anglo-American law it is reflected in the right for the anticipatory breach of contract. PRC Contract Law draws on the traditional basic theory of the civil law, and the right for unstable counterplea is stipulated in article 68 and 69, while it has absorbed anticipatory breach system in Anglo-American law, stipulated in article 94 and 108. Due to different inheritance of the two law systems, similar systems from different law history are difficult to integrate and assimilate. As a result,the two systems in Contract Law can＇ t achieve complementary advantages;on the contrary, they have created many problems, such as conflicts and unfairness in application. How to deal with conflicts between the two laws and properly arrange relief channel for creditors when expectations are not performed, on which this thesis proposed relevant ideas based on analysis and reference.