论合同解除后返还清算与违约责任之衔接——以违约导致合同解除的情形为分析对象

On the Connection between Returning Liquidation after Contract Termination and Breach of Contract Liability:An Analysis of the Situation of Contract Termination Caused by Breach of Contract

要合同因违约解除后,标的物的变化在逻辑上可分为利益维持型、利益增量型与利益损耗型。增益的分配与损耗的承担皆需要实质理由。由于《民法典》第566条第1款在文义上未体现任何评价因素,该款本身无法提供分配增益或承担损耗的实质理由。又因为返还清算的法效果对称发生,双方的返还皆等价对应,不妨限缩返还清算的法效果,故将分配增益与承担损耗的重任交与足够考虑合同履行情况的违约责任规范。这样一来,恢复原状的法效果仅为请求对方返还已方的给付,且该返还以能够返还者为限。恢复原状的独立意义在于为守约方提供了一个反悔至合同缔结前的机会。增量利益的分配需交由履行利益标准判断。无法返还者皆纳入价值偿还的范畴。在违约导致合同解除的情况下,价值偿还的基准应采主观说。判断价值偿还的思维方法是先进行价值偿还,进而依《民法典》第584条检验,考察已方的价值偿还是否由对方违约所致。若是,则已方的价值偿还之债便可与对方的违约损害赔偿之债相互抵销,意味着已方的价值偿还责任相应全部或部分免除。

After the contract is terminated due to breach of contract,the changes in the subject matter can be logically divided into interest maintenance type,interest increment type,and interest loss type.The allocation of gains and the assumption of losses both require substantial reasons.Due to the fact that Article 566(1)of the Civil Code does not reflect any evaluation factors in its literal meaning,this provision itself cannot provide substantive reasons for distributing gains or bearing losses.Because the legal effect of return liquidation occurs symmetrically,and the returns of both parties are equivalent,it is advisable to limit the legal effect of return liquidation and entrust the responsibility of distributing gains and bearing losses to the norms of liability for breach of contract that fully consider the performance of the contract.Therefore,the effect of restoring the original state is only to request the other party to return their own payment,and the return is limited to those who can.The independent significance of restoring the original state lies in providing the complying party with an opportunity to repent back to before the contract was concluded.The allocation of incremental benefits needs to be judged by the standards of expectation damages.Those that cannot be returned are included in the category of value repayment.In the case of contract termination due to breach of contract,the basis for value repayment should be subjective.The thinking method for determining value repayment is to first conduct value repayment,and then conduct a test according to Article 584 of the Civil Code to examine whether one's value repayment is caused by the other party's breach of contract.If so,the debt of one's own value repayment can be offset against the debt of the other party's breach of contract compensation,which means that one's responsibility for value repayment is correspondingly completely or partially exempted.