根本违约的价值定位和构成研究

Research on Evaluation and Its Formation for Judging the Fundamental Violation of Contracts

根本违约制度的价值(功能)既可以理解为赋予了合同当事人法定解除权,也可以理解为对当事人法定解除权的限制。根本违约制度的实质意义在于平衡违约方、非违约方以及社会之间的利益分配。从各国根本违约制度的实践来看,我国目前无论是在立法上,还是在司法上,都存在很大的不足。

The paper believes that the evaluation for the fundamental violation of the contracts can be interpreted as to give the client of the contract the dispel rights, or to give the limitation of those rights. The essence of the system of violation of the contracts lies in imposing the balance among violation party, the non-violation party and the society as a whole in interest division. In view of the practice of the system of violation of the contracts carried out in the world, there exits great deficiency in this filed with regard to the legislation and judicature.