欧洲民法典草案债务人补救权研究

Study on the Debtor's Right to Cure under the Draft Common Frame of Reference

合同各方当事人均应严格按合同及法律之规定履行各自义务。一旦债务人未能按合同及法律规定履行义务的,债权人有权追究债务人之违约责任。然而基于诚实信用原则、鼓励交易与合同维持精神等,欧洲民法典草案赋予债务人在履行不符时补救其履行之权利。但基于债务人与债权人利益之平衡,欧洲民法典草案同时为债务人之补救权设定了一定条件。欧洲民法典草案的这些规定对于我国民法典债务人补救权制度的起草具有重要借鉴意义。

The parties to the contract shall perform their respective obligations in accordance with the terms of the contract and provisions of relevant laws. In case the debtor has failed to perform the obligations,the creditor is entitled to sue against the debtor for breach of contract. However,based on the principles of good faith,encouragement of trade and maintenance of contract,the European Draft Common Frame of Reference has offered the debtor the right to cure in case of non- conforming performance. In the meanwhile,in order to balance the interests of both creditor and debtor,Draft Common Frame of Reference has provided strict requirements on such right. These provisions on debtor＇s right to cure may play an important role of reference for drafting the Civil Code of China.