约定解除权的识别与规制

Identification and Regulation of the Right of Rescission by Agreement

约定解除权系解开合同束缚的权利钥匙,实务中当事人多期望通过合同约定降低解除权行使难度,以在最大程度上掌握主动权。关于合同解除的不同文字表述会导致合同解除不同的满足条件与不同法律效果,可依是否需要行使解除权、行使解除权是否附条件、所附条件是否与合同义务相关等标准加以区分。约定解除系契约自由与意思自治的体现,故对约定解除权的各类情形宜以肯定为原则,对其与"合同严守"的利益冲突则在现行法律体系下,应以诚实信用与公平原则为衡量标准,以法定解除权为参照,对各类约定解除权予以必要规制。

The right of rescission by agreement is the key to unlock the bondage of the contract.The parties expect to reduce the difficulty in exercising the right of rescission by agreement in order to gain the initiative of the contract to the greatest extent.The different expressions of the rescission in the contract will lead to different conditions and different legal effects of rescission,such as whether it is necessary to exercise the right of rescission,whether it is conditional to exercise the right of rescission,whether the attached conditions are related to contractual obligations and so on.Rescission by agreement is the embodiment of freedom of contract and autonomy of the parties’ will so that affirmation of such right should be taken as the principle.The conflict of interests between the agreement rescission and strict agreement observation should be addressed according to the good faith doctrine and the principle of fairness under the current legal system.The right of statutory rescission should be taken as the criterion when the right of rescission is ruled and regulated.