论违约方的合同解除权

On the Breach Party’s Right to Terminate the Contract

合同解除权是当事人依约定或法律规定享有的解除合同的权利。伴随经济发展,司法实践中产生大量合同僵局案例,我国法律未明确解除权主体包含违约方,民法典二审稿曾作出大胆尝试,后删去相关条文,违约方在何种情况下可以解除合同产生巨大争议。本文通过实证研究的方式,归纳违约方解除的司法困境,并分析法院支持违约方解约的理由,结合法理基础、法律解释空间论证其正当性。设立违约方申请司法解除制度具有必要性,其具体边界为:在满足非恶意违约、继续履行显失公平、不解除合同违反诚实信用原则的条件下,违约方可申请解除寻求必要的救济,以求交易效率与实质公平。

The right to terminate the contract is the right of the parties to terminate the contract according to the law or their agreement. With economic development, there have been a large number of contract deadlocks in judicial practice in China. Chinese law does not specify that the breaching party has the right to terminate contracts. The second review draft of the Civil Code made a bold attempt, but the relevant clauses were deleted later. It has caused huge disputes when the breach party can terminate the contract. Through empirical research, this paper summarizes the judicial dilemma of the breaching party’s termination, analyzes the reasons for the court to support the breaching party’s termination, and demonstrates its legitimacy based on the legal basis and legal interpretation space. It is necessary to establish a system for the breach party to apply for judicial termination to seek transaction efficiency and substantial fairness. When the breach of the contract is not malicious, continuing the contract is obviously unfair, or continuing the contract causes violation of the integrity principle, the breach party can apply for termination and seek necessary remedies.