继续性合同解除制度探究

On the System of Cancellation of Continuing Contracts

继续性合同有不同于一时性合同的特殊特征,其在解除理念和解除效力上具有特殊性,要平衡合同继续性与合同安定性之间的关系。为了避免当事人被永久束缚在一个契约关系中,我国规定了随时解除制度,但其与任意解除高度相似,应注意二者区别。继续性合同在适用法定解除时要关注其特殊性对合同目的不能实现认定的影响,质疑违约方解除权的正当性基础,合同僵局根本不存在,效率违约理论不适用于我国。我国《民法典》并没有区分规定一时性合同与继续性合同的解除规则,而是以一时性合同的一般解除统筹所有类型合同的解除,继续性合同的解除规则难免会存在漏缺,所以基于重大事由解除显得必要。

Continuing contracts have special characteristics different from temporary contracts. They have special characteristics in the concept and effect of rescission. It is necessary to balance the relationship between the continuity of the contract and the stability of the contract. In order to avoid the parties being permanently bound in a contractual relationship, China has stipulated the system of termination at any time, but it is highly similar to the system of arbitrary termination, and we should pay attention to the difference between the two. When applying legal rescission to a continuing contract, we should pay attention to the impact of its particularity on the recognition of the contract purpose which cannot be realized, and question the legitimacy basis of the right of rescission of the breaching party. The contract deadlock does not exist at all, and the theory of efficient breach of contract is not applicable to China. The Civil Code of China does not distinguish the rules of rescission of temporary contracts and continuing contracts, but plans the rescission of all types of contracts based on the general rescission of temporary contracts. The rescission rules of continuing contracts will inevitably have gaps, so it is necessary to rescind them based on major reasons.