合同解除之诉的解释论展开

Elucidation of Lawsuits for Dissolution of Contract from the Interpretative Perspective

《民法典》建构起通知解除和司法解除二元并存的合同解除权行使模式,由此引发的诉讼为合同解除之诉。后民法典时代,有必要站在解释论的立场,体系化阐释合同解除之诉的规范意蕴和程序法理,实现二元并存模式的制度价值。合同解除权属于广义形成权,根据行使方式之不同,可分为普通形成权和形成诉权。合同解除之诉因诉讼标的不同,诉讼类型亦不同。因通知解除形成的确认解除行为效力之诉和确认解除合同主张之诉属于确认之诉,诉讼标的为普通形成权,所作判决为具有既判力的确认判决;因司法解除而形成的诉讼为形成之诉,诉讼标的为形成诉权,相应的支持性判决为形成判决,具有形成力和既判力但不具执行力。实务中合同解除之诉多与给付之诉合并,若当事人在给付之诉中未将确认请求作为独立诉讼标的提出,法院无需释明当事人追加该请求,其可在判决理由中对合同解除事实作出判断;若当事人未提出形成请求,法院则应予释明追加,并在判决主文中作出回应。

As a way to terminate the rights and obligations of contracting parties, the system of dissolution of contract is of high importance in the field of contract. On the basis of previous legal norms and practice, the Civil Code has set up a dualistic mode of exercising the right of dissolution of contract in which notice dissolution and judicature dissolution coexist, and all of the resulting actions could be referred to as lawsuits for dissolution of contract. These lawsuits can be divided into two basic types: actions for notice dissolution of contract and actions for judicature dissolution of contract. The former includes actions to confirm the effect of dissolution and the claim of dissolution of contract, while the latter includes actions for dissolution of contract under change of circumstances and actions for dissolution of contract under exceptional circumstances of continued performance of non-pecuniary debt. In the post-Civil Code era, it is necessary to systematically explain, from the interpretive perspective, the normative implication and procedural jurisprudence of the lawsuits for dissolution of contract, so as to ensure that the system value can be effectively implemented within the procedural framework in legal practice. The right of dissolution of contract belongs to the generalized right of formation. According to its ways of exercise, namely whether the lawsuit is necessary or not, such right can be divided into ordinary right of formation and suit right of formation. Under the dualistic mode, lawsuits for dissolution of contract can also be divided into two categories by their objects: i.e. actions arising from notice dissolution, which belong to actions of confirmation, whose object of action is ordinary right of formation, the judgment on which is confirming judgement with res judicata but no formation force or executive force, and the time of termination of the contract is when the intention of dissolution reaches the adversary;and actions arising from judicature dissolution, which are the actions of formation, whose supportive judgment is formative judgement with formation force and res judicata but no executive force, and the time of termination of the contract is when the judgment becomes effective. The determination of the types of action for dissolution of contract does not follow the logical path of “right of formation-action of formation-judgment of formation-formation force”. If all the actions whose object is the right of formation are regarded as actions of formation, unnecessary disputes will arise in the determination of the force of judgment and the merger of trials. In practice, actions for dissolution of contract are often merged with actions of prestation. If the request for confirmation is not filed as a separate object of action but taken as the causal fact of the prestation claim, the confirmation request can be absorbed by the prestation request, and the court does not have to explain to the party that he can add the request as an object of his action or to respond to the request in main part of the judgment, yet can specify the confirmation content in ratio decidendi;if a party has not made a request for formation, the court should explain to him that he can add this request as an object of his action and make a clear response to it in the main part of the judgment.