实际履行的双重性质——兼论实际履行的内涵与构成要件

Double Characters of Enforced Performance:A Study on Connotation and Constitutive Requirement as well

实际履行本来是实体法概念,内涵中并不必然包括诉讼、国家强制力等内容,其本质应是债务人依约履行。实际履行既是债的理论中债权请求履行力、诉请履行力以及诉请执行力的体现,在合同法理论框架下又是违约救济措施的一种,因此具有双重属性。构成要件不同于证明要件,'债务不履行'应成为实际履行的构成要件之一。

Enforced performance is a legal concept in substantial law.It is not always accompanied by a lawsuit or state power.It means essentially that the obligator should perform as what is settled down in the original contract.Enforced performance can be regarded under the"Obligation Theory"system as the expression of"power of performance","power of leading a suit"and"power of execution"of obligatory right,while it is one of the remedies for breach of contract in"remedy"system.In a word,it has double characters.Constitutive requirements of enforced performance have to be separated from those which should be proved in a lawsuit.Constitutive requirements of enforced performance.