论自始履行不能的法律效力

Legal validity on Initial Impossibility of Contract Performance

现代各国立法与国际条约普遍承认自始不能的合同效力。废除合同无效规则出于对罗马法误解的纠正和债权人利益的保护。自始不能的违约责任可能与缔约过失责任发生竞合,其归责原则相较于嗣后不能应当更加严苛。我国的给付障碍立法可以采纳法律效果进路,在统一的事实构成之下对履行不能做出特殊规定。

A number of laws from various countries and several international treaties have universally acknowledged the initial impossibility of a contract performance. The principle of void was abolished due to the correction of misunderstanding concerning Roman Law and the protection of creditors＇ interests. The legal liability resulting from the initial impossibility of a contract per- formance is likely to compete with liability for a contracting fault. Moreover, the doctrine of liability fixation contrasts with that applied in impossibility after the contract is entered should be stricter. The regulation about performance impossibility in China could adopt the kind of mechanism which emphasizes on the legal results, specifying the particular rules with regard to performance impossibility on the basis of uniform legal elements.