预期履行不能制度的逻辑起点与立法完善

Study on the System of Prospective Inability to Perform:Logical Start and Improvement of System

预期履行不能作为一种特殊的违约形态,与预期拒绝履行共同构成了我国《合同法》上预期违约的形态。从预期违约的适用形态考察,预期不能履行在学理上可以被认定为预期违约,但在我国立法中并未被实际确认。在此前提下,我国《合同法》所确立的预期履行不能与不安抗辩权并存的制度结构安排,尽管会引起制度之间的部分冲突,但仍可用原因进路和救济进路的划分标准予以解释、界定。民法典的编纂为两项制度的衔接提供了契机。

As a particular style, the system of prospective inability to perform and anticipatory repudiation constitute the main form of Anticipatory Breach of contract in our country＇s civil law. Although our country＇s Contract Law fails to stipulate the system, prospective inability to perform always be accepted as an important type of anticipatory breach in academic circles. After that, as the fact of legislation situation that our Contract Law established two systems at the same time, system conflict always occur, but we can also give reasonable definition and explanation with the theory of the cause approach and remedy approach.The codification of the civil code provides an opportunity for the convergence of the two systems.