论合同法上的风险分配规则体系

Study on the System of Risk Allocation Rules in Contract Law

摘要: 我国现行《民法典》合同编规定的风险分配规则体系显得混乱杂糅，一方面是出于一般性的履行不能规则的体系性欠缺，另一方面则是不可抗力规则、情势变更规则等具体的风险分配规则之间杂糅适用所致，因而应从解释论上对上述制度之间的适用关系作出区分和厘清。具体而言，合同解除制度与风险负担规则的适用应在区分风险负担方的基础上选择适用，并在特定情形下否定合同解除权。不可抗力的认定应同时满足三个不能要件，并区分不同类型的不可抗力条款的效力。情势变更规则可与不可抗力规则共同适用，在考虑是否能与排除给付请求权规则共同适用时，应区分损害的是债务人收益或是债权人收益。

Abstract: The current system of risk allocation rules stipulated in the contract part of the Civil Code of China appears to be chaotic and mixed. On the one hand, it is due to the lack of systematic nature of the general rule of impossibility of performance, and on the other hand, it is due to the mixed application of specific risk allocation rules such as the rule of force majeure and the rule of change of circumstances. Therefore, the applicable relationship between the above systems should be distinguished and clarified from the perspective of interpretation. Specifically, the application of the contract rescission system and the risk bearing rules should be selected based on the distinction between the risk bearing parties, and the right to rescind the contract should be denied under specific circumstances. The determination of force majeure should simultaneously meet the three elements of impossibility, and distinguish the effectiveness of different types of force majeure clauses. The rule of change of circumstances can be applied together with the rule of force majeure. When considering whether it can be applied together with the rule of exclusion of payment claims, it is necessary to distinguish between the debtors’ income or the creditors’ income that is harmed.