合同履行障碍制度与风险负担规则关系论

The Relationship between the Regime of Barriers to Contract Performance and the Rule of Risk Burden

摘要: 履行障碍指合同没有正常履行的情况，其侧重于合同履行过程中发生障碍的情形，含括情势变更、履行不能、不可抗力等等。我国并没有“合同履行障碍”的定义，这是来自德国法上的概念。在发生合同履行障碍时，救济措施是保障缔约人合法利益的必要手段，其中风险负担规则作为合同履行障碍的一种救济措施，能够起到帮助合同实现的作用。我国还没有系统的履行障碍法，在此背景之下，研究风险负担规则和合同履行障碍二者关系，希望能够为我国履行障碍法的建设提供些许裨益。

Abstract: An impediment to performance is a situation in which a contract is not performed properly, fo-cusing on circumstances that impede the performance of the contract, including change of cir-cumstances, failure to perform, force majeure, etc. We do not have a definition of “impediment to contract performance”, which is a concept from German law. In the event of an impediment to the performance of a contract, remedies are necessary to protect the legitimate interests of the contracting parties, of which the rule of the burden of risk, as a remedy for impediments to the performance of a contract, can play a role in helping the fulfilment of the contract. In China, there is no systematic law on impediments to performance. Against this background, the relationship between the risk burden rule and impediments to contracting performance is studied in the hope of providing some benefit to the construction of the law on impediments to performance in China.