租赁合同的任意解除权探析

On Lease Contract' Right of Termination Without Any Reason

罗马法的契约必守原则在整个契约关系的发展进程中始终发挥着积极的指导作用。我国《合同法》第232条规定了不定期租赁合同可以随时解除。为实现该制度与契约必守原则的平衡,有必要对任意解除权的行使做出一定限制,为避免权利滥用,宜参照德国法,对该权利的行使附加一定的条件;关于解约人的提前通知义务,我国仅规定"合理期限",而日本民法典采用经过申告一定期间后终止合同的模式,从而避免突袭非解约人的生活安宁状态,值得借鉴。最后,关于租赁合同解除中应遵循的诚实信用原则应明确强调"毋害他人"的标准。

The Principle of Abiding by Agreement of Roman Law always plays a positive role in the pro-cess of development of the whole contractual relationship. The article 232 nd of our Contract Law stipulates thatlease contract can be rescinded at any time. This thesis will start from the right of termination without any rea-son of lease contract, and introduce cases to analyze the right of termination without any reason problems in thenon-term lease contract. In order to realize the balance of this system and The Principle of Abiding by Agree-ment, it is necessary to make certain restrictions in the exercising of right of termination without any reason, forexample, to avoid abusing of power, our country should refer to German Law to have conditions attached to exer-cise this right. For notification obligation of the party with the termination right, it is necessary to consult Japa-nese Law what it takes some time before discharge of the contract, not just＂reasonable time＂, which our coun-try formulated, having a risk to strike the peaceful life of the other party. The Principle of Good Faith explicitlyemphasizes that in the exercise of this right, detriment of others should be avoided.