预期违约制度与履行抗辩权制度适应性探讨——兼议我国《合同法》相关制度设计与完善

Discussion about Adaptability of Anticipatory Breach of Contract to Defense Right of Performance System——On Design and Improvement of some Relevant Systems of China's Contract Law

大陆法国家合同法律制度现代化变革进程证明,在大陆法背景的合同法律制度中,可以建立与英美预期违约具有类似制度价值的履约救济机制。这一机制应与大陆法履行抗辩权制度形成功能互补、效用协调的履约救济和谐架构。我国《合同法》上预期违约与履行抗辩权制度并存建构存在不安抗辩权制度属性模糊等设计缺陷,应通过对不安抗辩权原因事实作更为原则的规定等措施予以完善。

The modernization reform process concerning contract law systems in civil law countries proves that there is possibility to build an implementation of remedy system in contract law systems in the situation of civil law, which is similar in system value to anticipatory breach of contract in the U. K and U.S. This system is supposed to be a harmonious frame for implementing remedy which is functionally efficient and complementary to defense right of performance system of civil laws. The design problem with unsafe right of defense system results from the co - existence of anticipatory breach of contract and defense right of performance system in China＇s Contract Law, which can be improved by introducing more principle regulations responsible for unsafe right of defense.