合同履行障碍与风险负担竞合冲突解释论

Interpretative Theory of Obstacle to Contract Performance and Risk Burden Concurrence and Conflict

风险负担规则从属于合同履行障碍,在因不可归责于当事人而造成的标的物毁损灭失时,与履行不能功能交叉重合。由于履行不能与风险负担具体解决机制不同,在适用时会发生竞合与冲突,但两者在目前并不存在替代关系,并存论更适合我国。具体而言,风险负担规则可以填补不可抗力免责规则缺少对待给付义务免除的内容,并优先于合同解除适用。而在情势变更规则中,风险负担与情势变更救济机制并不存在实质性矛盾。因此,当合同履行不能与风险负担规则竞合时,应优先适用风险负担规则。

The risk burden rule belongs to the obstacle to contract performance, which overlaps with the failure of performance when the subject matter is damaged or lost due to unattributable causes. Because the failure of performance can be different from the specific resolution mechanism of risk burden, competition and conflict will occur when it is applied. However, there is no substitute relationship, and the coexistence theory is more suitable for our country. To be more specific, the risk burden rule can fill in the content that the force majeure exemption rule does not treat the exemption of payment obligation and take precedence over the termination of contract. And there is no substantial contradiction between risk burden and circumstance change relief mechanism. Therefore, when the subject matter is damaged or lost due to unattributable causes, the failure of performance competes with the risk burden rule, and the risk burden rule is preferred.