合同解除与合同终止之辨析——兼评我国“大”合同解除观

On Discrimination of Rescinding Contract and Terminating Contract and Comments on the Generalized

基于非继续性合同与继续性合同之间在性质上的差异,有必要对二者分别设立溯及力各不相同的合同解除制度与合同终止制度。合同解除制度是针对合同解除权的发生和行使而设计的,而合同终止制度是围绕终止权的发生和行使而制定的。两者基于其各自所适用的合同的不同性质,在溯及力方面相应地截然不同。而'大'合同解除观存在种种不足,以之为依托的我国《合同法》的相关规定应当为并行不悖的合同解除制度和合同终止制度所取代。

Considering the difference between the non-continuing contracts and the continuing contracts,it is necessary to respectively set up systems of rescinding contract and terminating contract of different retroactivity.System of rescinding contract is designed aiming the occurrence and implementation of the right of rescinding contract,but system of termination contract is set up centering on the occurrence and implementation of the right of terminating contract.Considering the difference of nature of contract applied,the two systems are completely different on retroactivity correspondingly.As the generalized concept of rescinding contract has a variety of deficiency,relevant regulation of China’s contract law should be replaced by system of rescinding contract and system of terminating contract which are not mutually exclusive.