“根本违约”的认定相关法律问题研究——基于国际商事公约的视角

Study of Legal Issues Related to the Determination of Fundamental Breach of Contract—Perspective Based on International Commercial Conventions

为了在推动对外贸易蓬勃发展的同时合理规避我国外贸企业的法律风险,对于可能造成严重合同后果的“根本违约”制度之认定标准应予深刻理解与精准把握。诞生于由多国参加的《联合国国际货物销售合同公约》,“根本违约”制度兼具英美法系与大陆法系的特点;早年间国内学界惯常以大陆法系的思维通过构成要件严格把握其认定标准;近年来各国法院却鲜少以判断是否满足构成要件的模式适用该制度。变化集中表现在法院对各要件的重要性及适用的先后顺序突破了传统学术观点,即将“损害结果”认定为必要条件,而其他构成要件认定为充分条件;以及“可预见性规则”应当作为认定标准,还是应当作为阻却其成立的抗辩理由,学界和各国法院的观点存在争议。

In order to promote the vigorous development of foreign trade and at the same time reasonably avoid the legal risks of China’s foreign trade enterprises, the criteria for determining the “fundamental breach” system, which may cause serious contractual consequences, should be deeply understood and accurately grasped. Born in the United Nations Convention on Contracts for the International Sale of Goods, which is attended by many countries, the system of “fundamental breach” has the characteristics of both common law and civil law systems;in the early years, the domestic academic community used to strictly grasp the criteria of its determination through the constitutive elements in the thinking of the civil law system. In recent years, the courts have rarely applied the system by judging whether the constituent elements are satisfied or not. The changes focus on the importance of the elements and the order of their application, which break away from the traditional academic view, i.e., the “damage result” is considered as the necessary condition and the other constituent elements are considered as the sufficient condition;and the “foreseeability rule” should be should be a criterion or a defense to prevent its establishment, the opinions of scholars and courts in various countries are controversial.