民法典视域下替代履行制度的解释论展开

On the System of Self-Performance in the Light of the Civil Code

依据《民法典》第581条,针对不得强制履行的债务,债权人可以请求债务人负担由第三人替代履行的费用。从体系解释的角度看,这不同于《民事诉讼法》第259条,《民法典》第581条是针对替代履行这种特殊的违约救济措施的实体性规定,其权利行使不以生效的法院判决为前提。替代履行是由债权人或第三人完成本应由债务人完成的实际履行,其风险和费用理应由债务人承担。《民法典》第581条赋予了债权人一般性的替代履行的权利,有让债务人负担过重之虞,有必要将其限定在一定的范围内,而第581条中“根据债务的性质不得强制履行”的前提设定体现了立法机关对替代履行的范围限制。与此不同,承租人和买受人的替代履行的适用范围更为狭窄,仅限于标的物有瑕疵的情形。除了适用范围上的区别,合同编总则和分则规定的替代履行,在制度功能、构成要件和法律效果等方面并无实质区别,可将替代履行制度作为主线进行一体分析。

According to Article 581 of the Civil Code,if the obligation cannot be enforced,the creditor can require the debtor to bear the costs of self-performance by a third party.From the point of systematic interpretation,Article 581 of the Civil Code differs from Article 259 of the Civil Procedure Code,as Article 581 of the Civil Code is a substantive norm for self-performance,which provides for a special remedy for breach of contract,the exercise of which does not require a judicial decision.Self-performance means that the creditor or a third party,at the debtor’s expense and risk,provides the service that should have been performed by the debtor.The Civil Code added self-performance to the General Rules of the part of Contracts through Article 581 and gives the creditor a general right to self-performance,but this can be overly burdensome for the debtor.For this reason,the application of self-performance should be limited to a narrow scope.According to Article 581,the creditor can exercise the right to self-performance if the performance cannot be enforced.Thus,the right to self-performance provided for by Article 581 of the Civil Code can be limited to a narrow area of application.In contrast,the scope of application of self-performance in the rental and purchase contract is much narrower and limited to cases in which the debtor’s performance is unsatisfactory.Apart from that,there is no significant difference between the general provisions and the special provisions in the rental and purchase contract on self-performance.They have the same function,prerequisites and legal effects.Therefore,the provisions on self-performance will be analyzed uniformly.