合同解除与风险负担在履行障碍下的交错

Contract Rescission and Risk Burden Staggered under the Performance Obstacle

摘要: 合同履行障碍自始以来成为困扰当事人和法律实践的一项难题，为解决此问题，多数国家依事实构成进路为履行障碍设置救济体系。合同解除与风险负担规则作为解决机制中的两项重要组成内容，在法律后果、适用内容等方面多有竞合交错，在某些场合甚至还存在冲突。我国目前采用两种解决制度并存的模式，与解除一元论的模式相比有利有弊，尤待在立法实践上将履行障碍体系由事实构成进路向法律后果进路慢慢转变，司法实践中进一步作出细致规定来缓解二者冲突，完善合同履行障碍解决机制体系。

Abstract: The obstacle of contract performance has been a difficult problem to the parties and legal practice since the beginning. In order to solve this problem, most countries set up the relief system for the obstacle of performance according to the fact. The rules of contract rescission and risk burden are two important components of the solution mechanism, which are in the legal consequences, the applicable content and other aspects are more concurrence staggered, in some occasions even conflict. Patterns of our country currently adopts two kinds of solution system coexist. Compared with the rescission of the monism mode, especially in legislative practice general performance of the barrier system is slowly shift from the road of the constitution of facts to the road of legal consequences, further detailed provisions in the judicial practice to relieve the conflict, improving the barrier of the contract settlement mechanism system.