合同法减价制度再建构

Reconstruction of the System of Price Reduction in Contract Law

我国《合同法》赋予在瑕疵履行情形下受损方的减价权,但这项制度被学界认为制定的比较粗糙,以致于在适用上存有比较大的争议。应当在立法上明确减价为形成权之权利性质,实现合同法救济方式的体系协调,并通过制度层面调整规范对债权人利益的保护。物之瑕疵和权利瑕疵有同等受到保护的必要,因此权利瑕疵同样需适用减价。减价在适用上应当采比例式进行计算,瑕疵价格的确定以缔约时为准据时点。债权人可以根据自己的需要选择减价权与损害赔偿。基于维护意思自治以及当事人有其他救济途径的角度看,法院、仲裁机关无权依职权替当事人作出减价的意思表示。

China's Contract Law gives the right of price reduction to the injured party in the case of defective performance.However,this system is considered to be relatively rough by our academics.It is therefore that a great controversy still exits on its actual application.We should verify the character of the price reduction in the legislation process,realize the system coordination of the remedies of Contract Law,and regulate the protection of creditors'interests through the system-level adjustment.It is necessary to protect the rights of the liability for warranty against defects and warranty against defects of right equally so that the defect of rights also needs to apply the price reduction.The price reduction should be calculated in proportion.Also,the determination of defect prices should be on the basis of the contracting time.The creditor can choose the price reduction right and compensation for damages according to his own needs.From the perspective of maintaining the autonomy’s will and other party’s relieves,the court and the arbitration organ have no right to express their intentions to reduce the price on behalf of the parties.