合同履行障碍的法律解决机制

Legal Settlement Mechanism of Obstacles to Contract Performance

摘要: 事实构成进路是传统的合同履行障碍法律规制体系。随着经济社会的发展，合同履行障碍的类型也不断增加，事实构成进路已经无法适应社会变化发展的需要。法律效果进路这一新的合同履行障碍规制体系可以很好地弥补事实构成进路的缺陷，从事实构成进路向法律效果进路转变也已成为当今各国合同履行障碍法的立法趋势。从我国目前立法规定来看，我国对合同履行障碍的立法兼采了事实构成进路和法律效果进路，这会使得我国立法下合同履行障碍的解决机制不够明确。在对合同履行障碍的法律解决机制进行思考和重构时，应采用法律效果进路，用“不履行”和“义务违反”作为连接点来囊括各种不同类型的合同履行障碍，在赋予不同类型的合同履行障碍较为统一的救济手段的同时，对各种救济手段行使的条件和范围加以规定和限制。

Abstract: The cause approach is the traditional legal regulation system of obstacles to the performance of contract. With the development of economy and society, the types of obstacles to the performance of contract are also increasing. The cause approach has been unable to meet the needs of social development. The remedy approach, as a new regulation system of obstacles to the performance of contract, can make up for the defects of the cause approach. The transformation from the cause approach to the remedy approach has also become the legislative trend of the law of obstacles to the performance of contract in various countries. From the perspective of China’s current legislative provisions, China’s legislation on the obstacles to the performance of contract adopts both the cause approach and the remedy approach, which will make the solution mechanism of the obstacles to the performance of contract under China’s legislation unclear. When considering and reconstructing the legal solution mechanism of obstacles to the performance of contract, we should adopt the remedy approach, using “non performance” and “breach of obligation” as the connection point to include various types of obstacles to the performance of contract, and specify the conditions as well as limit the scope of various remedies while giving different types of obstacles more unified remedies.