论预期违约与不安抗辩权的共存与衔接

On the Coexistence and Connection of Anticipatory Breach of Contract and Uneasy Right of Defense

我国《合同法》同时设立了功能相似,存在交叉重合的不安抗辩权与预期违约。学界对于不安抗辩权和预期违约的取舍、二者的区别和衔接存在诸多不同的观点和论述。不安抗辩权与预期违约根本性质不同,二者不可互相替代。由于立法条件和技术的限制,我国《合同法》立法遗留了不少问题,主要是不安抗辩权与预期违约制度适用条件和范围未作明确区分,二者关系不明晰。立法的缺失导致司法实践中出现合同债权人在适用预期违约维权时陷入根本违约的情形。因此,在制度重构时必须对不安抗辩权和预期违约制度作调整和完善。

“Contract Law”has also established similar functions, and there are cross-coincident unease defense rights and expected breach of contract. There are many different views and arguments in the academic circles on the choice of unrest defense and the expectation of breach of contract, the difference and connection between the two. The unsafe defense right is different from the fundamental nature of the expected breach of contract, and the two cannot substitute each other. Due to legislative conditions and technical limitations, China's “Contract Law”legislation has left many problems, mainly because the uneasy defense rights and the conditions and scope of the expected breach of contract system are not clearly distinguished, the relationship between the two is not clear. The lack of legislation has led to the emergence of contractual creditors in judicial practice in the event of a default breach of contract when applying the expected breach of contract. Therefore, it is necessary to adjust and improve the system of unrest defense and anticipatory breach of contract in the reconstruction of the system.