诉讼上行使合同解除权之司法检视与应然规则

Judicial Review and Proper Rules on the Claim of Contract Cancellation by Filing a Lawsuit

涉及普通合同解除权之行使争议的诉讼在性质上属于确认之诉,但实践中不少法院将其误识为形成之诉。在判决主文的表述上,错误采取形成判决的方式来处理合同解除问题的案例极为普遍。诉讼上行使合同解除权时,解除效果的发生与否,仍应遵照实体法的规定处理。原告撤回诉讼的,其行使解除权的实体法效力不因诉的撤回而受影响。诉讼中原告将解除合同的请求变更为继续履行等其他请求时,关于合同是否已经解除,应根据解除意思是否已经到达对方以及是否符合实体法上解除权行使的要件进行判断,法院应当审查变更诉讼请求之前是否已经产生合同解除之私法上效果,并对案件作出相应的处理。

The lawsuit involving the dispute of the exercise of the general contract cancellation rights is in the nature of a confirmation lawsuit,but in practice,many courts have misidentified it as a formation lawsuit.The cases in which the formulation of the main text of the judgment incorrectly take the formation judgment to deal with the issue of contract cancellation are extremely common.When contract cancellation is exercised in litigation,the occurrence or non-occurrence of the effect of cancellation shall still be governed by the provisions of substantive law.If the plaintiff withdraws the lawsuit,the substantive law effect of his exercise of the contract cancellation right is not affected by the withdrawal of the lawsuit.When the plaintiff changes the claim to cancel the contract to other claims such as continuation of performance,the determination of whether the contract has been cancelled will be based on whether the intention to cancel has reached the other party and whether the elements of the exercise of the right to cancel in substantive law are met.The court should examine whether the substantive law effect of contract cancellation has been produced before the change of claim and deal with the case accordingly.