因第三人原因造成的违约与责任承担——兼论《合同法》第121条的理论解构

Breach of Contract and Liability Arising from the Third Party's Reason——On the Theoretical Deconstruction of Article 121 of Contract Law

《合同法》第121条严格恪守债的相对性,规定在因第三人原因导致债务人违约的情况下,债务人应向债权人承担违约责任,仅在向债权人承担违约责任后,债务人才可以向第三人追偿。据此,除不可抗力这一狭窄的免责事由外,债务人近似承担的是一种"不可思议的超级债务"。过错责任、客观责任两大立法例下的履行障碍或者违约风险的分配结果极为相似且都为债务人的责任承担设置了合适的边界。基于现实的需要与理性的要求,解释上应认为第121条没有完全排除债权人向第三人求偿之可能,在第三人的原因是引起债务人违约的直接原因且第三人主观上存有故意、债务人主观上无过错时,应允许债务人根据具体情形选择适用不可抗力、情势变更、风险负担、合同解除四种方式来免除其责任承担。

Article 121 of the Contract Law, which is to strictly abide by the relativity of debt, stipulates that the debtor shall bear the liability for breach of contract in the case of the debtor＇ s default due to the third party＇s reasons, and only after the debtor undertakes the liability for breach of contract, can she/he claim her/his right of indemnity from the third party. Accordingly, except for the narrow exemption from force majeure, the debtor is assumed to be an ＂inconceivable super debt＂. The distribution of the performance barrier or the risk of breach of contract is very similar in the two legislative cases of fault liability and objective liability, and both of them set the suitable boundary for the debtor＇s liability. Based on the practical needs and the requirements of rationality, the explanation should be that Article 121 does not completely exclude the possibility of the creditor＇ s rights of making claims to a third person. If the third person＇s reason is the direct cause of the debtor＇s default and the third person has a deliberate intention, while the debtor is subjectively fault-free, the law should allow the debtor, according to the specific circumstances, to select such four ways as force majeure, change of the situation, the risk burden or termination of the contract to exempt his liability.