CISG减损规则及其在中国的适用

Mitigation Rule of CISG and Its Application in China

减损规则普遍见于国际法律文件和各国国内法,它符合效率、诚信、公平原则,也符合商务实践的通常做法。减损本质上是受损害方的单方行为,受损害方应在现实可行的范围内尽可能地减少损失,合理是双方权利义务平衡的关键。在违约方不交货或不付款的情况下,替代交易是通常的合理措施,但也不绝对。在迟延交货、交货不符等情形下,补货或修复是相对比较常见的减损措施。实践中,合理性的判断需要结合个案的具体情况来考量。中国法院和仲裁庭在CISG案件中较好地适用了CISG减损规则,但也存在问题,而中国《合同法》的减损规则也宜通过司法解释加以补充完善。

Damage compensation rule is commonly contained in international legal documents and domestic laws. To mitigate damages in case of breach is in comformity with principles of effi- ciency, good faith and fairness, and usual practice in commercial transaction. Damage mitigation by nature is unilateral action of aggrieved party. The aggrieved party shall decrease losses within the boundary of feasibility, and reasonableness is the key for the balance of rights and obligations of both parties. Substitute transation is the usual reasonable measure in case of non-delivery and non-pay- ment, though it is not always reasonable. Replenishment and repair are relatively common measure in case of late delivery and non-conforming delivery. The measurement of reasonableness is on a case-by-case basis in practice. Chinese court and arbitration tribunal have well applied mitigation rules of CISG, but there are still problems. Furthermore, the mitigation rules in Chinese Contract Law need to be detailedly interpreted by judicial interpretation.