履行障碍救济路径的体系展开——以风险负担规则与合同解除机制为中心

Study on the Relief Path of Contract Performance Obstacles—The Risk Burden Rule and Contract Termination as the Center

摘要: 在因不可归责于债务人的原因致使标的物毁损、灭失而合同目的落空的情形，风险负担规则与合同解除制度和违约责任发生了适用上的交叉。我国《民法典》采两者并存模式样态之现状应得到维持。文章结合案例主要分析风险负担规则与合同解除制度适用范围的边界与交集，认为解除一元论与二元论是对在两者间关系的不同认知与处理，虽双方在牵连性、法效果、时效规则及适用程序上存在差异，但归根结底应当明晰法律条文，将建立良善的法律适用作为落脚点。

Abstract: In the case where the object is destroyed or lost for reasons not attributable to the debtor and the purpose of the contract is defeated, the burden of risk rule intersects with the contract release system and the liability for breach of contract. The status quo of adopting the model of co-existence of both in the Civil Code should be maintained. The article analyzes the boundary and intersection of the scope of application of the risk burden rule and the contract release system, and argues that the release monism and dualism are different perceptions and treatments of the relationship between the two, although there are differences in implication, legal effect, limitation rules and applicable procedures, but in the end, the legal provisions should be clarified and the establishment of good legal application should be the starting point.