论和解协议与原合同之间的关系

Relationship between the Settlement Agreement and the Original Contract

和解协议作为一种纠纷解决方式,通常涉及与原合同之间的复杂关系。和解协议旨在解决原合同关系的不确定性,克服不确定是和解协议的基本功能,也是其与类似制度的关键区别。在当事人没有特别约定时,和解协议与原合同之间构成并存关系。此时,债权人不得依据两个合同关系主张双重请求权,原合同处于“暂时休眠”状态,当事人应优先履行和解协议。在和解协议不履行或不能履行情形下原合同将“复活”,这有利于防止债务人滥用和解协议,损害债权人利益。在一方不履行和解协议时,另一方获得选择权,即有权选择履行原合同或和解协议。和解协议的不履行不应导致双重违约责任,债权人选择之后,债务人的履行将导致当事人之间新旧合同关系的消灭。只有厘清和解协议与原合同之间的关系,才能最大限度地发挥和解协议的解决纠纷、诉源治理的作用。

In China,relevant laws and judicial interpretations have always attached great importance to settlement agreements and confirmed them in law.Settlements include litigation settlement and non-litigation settlement.Litigation settlement can have a dual effect in both substantive law and procedural law,while non-litigation settlement,as a purely civil law settlement,only produces a substantive law effect and has the binding force of a contract.The purpose of a settlement agreement is to address the uncertainty of the original contractual relationship,such as the existence of rights,the content,and the realization of the contract.This is also the key difference between settlement agreement and similar systems.The relationship between settlement agreement and original contract mainly manifests itself as substitution relationship and coexistence relationship.Usually,the parties agree in the settlement agreement that the creditor accepts the performance promise of the debtor or a third party as the repayment of the original debt.Although there are substantial changes in the contractual relationship,the traditional theory of debt renewal in civil law cannot be fully applied to explain the relationship between the original contract and the settlement agreement.This is because the purpose of a settlement agreement is to overcome the uncertainty of the original contract,thereby resolving disputes and avoiding litigation.Although a settlement agreement may change the original contractual relationship,it will not lead to the termination of the original contract,while the renewal of the debt is aimed at eliminating the original relationship.At this point,the coming into effect of the settlement agreement does not create a debt of choice,and creditors cannot claim dual rights based on the two contractual relationships.The parties should prioritize the performance of the settlement agreement.The failure or inability to fulfill the settlement agreement will lead to the“revival”of the original contract.This is conducive to preventing debtors from abusing settlement agreements and damaging the interests of creditors.If one party breaches the settlement agreement and gives the other party the right to choose,the non-performance of the settlement agreement should not result in double liability for breach.After the creditor makes the choice,the debtor’s performance will lead to the termination of the old and new contractual relationships between the parties.In conclusion,once a settlement agreement is reached,it should be given priority in application.Only in cases where performance cannot be achieved or the debtor fails to perform will it lead to the“resurrection”of the original contractual relationship.Creditors have the right to seek relief based on the settlement agreement or the original contract.Only in this way can the role of settlement agreement be maximized in resolving disputes and optimizing the governance of litigation sources.