试论根本违约制度

A Trial Discussion on the System of Fundamental Breach of Contract

根本违约是指当事人一方完全不履行合同义务或不完全履行合同主要义务或预期违约致使履行不能 ,其结果严重影响到另一方根据合同有权期待的经济利益的情形。根本违约责任或补救方法主要可采取赔偿损失、解除合同、宣告合同无效等三种。根本违约的免责理由主要是不可抗力。在根本违约问题上 ,我国《合同法》规定的不够具体、明确 。

Fundamental breach of contract means that one party concerned does not fulfill a contract at all, or fails to perform the whole obligation, or anticipatory breach of contract results in impossibility of performance, and those cases make a great impact upon the other party's anticipated interests granted in the contract. These situations mentioned above can be settled down in line with the liabilities for breach of contract or remedial measure through the three approaches, i.e. indemnity for a loss, terminating the contract, avoidance of contract. However, only when the irresistible force occurs does the exemption clause apply. In terms of fundamental breach of contract, its stipulations in Contract Law of our country are less definite, so the author suggests that it be specified on different situations, perfecting legislation.