《民法典合同编通则解释》违约责任制度的亮点与盲点

Highlights and Blind Spots of the Liability System for Breach of Contract in the Interpretation of the General Principles of Contract Compilation of the Civil Code

《民法典合同编通则解释》未固步自封、画地为牢,在解释之外也创新发展了《民法典》规则,尤其是违约方终止合同时点、替代交易、违约金酌减等违约责任制度呈现诸多亮点与盲点。在违约方终止合同时点问题上,司法部门犹若“摇晃的钟摆”,长期摇摆于通知解除与司法解除之间。解释的方案貌似折中调和,却违背违约方终止的司法解除性质,又产生与同属司法解除的情势变更规则不一致的“精神分裂症”。替代交易是“虚拟的强制履行”,该规则不意味着替代交易行为只能在合同解除后实施。替代交易规则受到合理性规则限制和减损规则制约,但替代交易本身并非义务。解释“以旧瓶装新酒”,实现了对违约金酌减规则的升级再造。特别是在违约金不得调整约定之效力、违约金酌减的计算基础与考量因素、违约金不得酌减之情形等几个方面积极作为,虽尚有探讨斟酌之处,但进取创新精神仍值赞许。

The Interpretation of the General Principles of Contract Compilation of the Civil Code is not confined to its own principles,but innovatively develops the rules of the Civil Code beyond its interpretation.In particular,there are many highlights and blind spots in the liability system for breach of contract,such as the timing of termination of the contract by the defaulting party,substitute transaction rules,and discretion of liquidated damages.The time rule for the defaulting party to terminate the contract is simply a“shaking pendulum”,and the judicial department has long been wavering between notification of termination and judicial termination,without a consensus.The interpretation is a seemingly compromising solution,but it is contrary to the essence of judicial termination of the contract by the defaulting party,and cannot be consistent with the rule of change of circumstances that belongs to judicial termination,resulting in“schizophrenia”.Substitute transaction is a virtual specific performance.It does not mean that substitute transaction behavior can only be implemented after the contract is terminated.Substitute transaction rules are also subject to limitations of reasonableness rules and limitations of mitigation rules,but substitute transaction itself is not a duty.The interpretation has upgraded and reconstructed the rules for reducing liquidated damages for breach of contract by packaging new wine in old bottles.Especially in terms of the effectiveness of the liquidated damages agreement that cannot be adjusted,the calculation basis and consideration factors of liquidated damages reduction,and the situation where liquidated damages reduction is not allowed,there is still room for discussion and consideration.However,its spirit of innovation and progress is still commendable.