不动产交易中“均未履行完毕合同”解释论

Interpretation of “Unfinished Contracts” in Real Estate Transactions

摘要: 现行破产法规定，管理人有权选择解除或继续履行双方均未履行完毕的合同，导致实践中管理人为保全债务人利益滥用选择权，损害债权人利益，因此必须对管理人选择权进行限制。限制的前提是要对均未履行完毕合同进行解释，明确管理人能够行使选择权的合同范围。针对破产案件中的不动产交易，应当将“双方均未履行完毕合同”限缩解释为：双方尚未履行或者双方主给付义务均未履行完毕的合同。针对特殊的所有权保留买卖合同和以房抵债合同，应当将所有权保留买卖合同解释为均未履行完毕的合同，以房抵债合同需要根据合同的签订时间分类讨论。在限缩解释的基础之上，应当借鉴国外的过重负担检验标准、利益平衡检验标准对管理人的选择权进行限制。

Abstract: The current bankruptcy law stipulates that the administrator has the right to choose to cancel or continue to perform the contract which has not been fulfilled by both parties. As a result, the ad-ministrator abuses the right to choose to protect the interests of debtors and damages the inter-ests of creditors in practice. Therefore, it is necessary to limit the administrator’s right to choose. The premise of restriction is to explain the contracts that have not been fulfilled, and to clarify the scope of the contract in which the manager can exercise the option. In view of the real estate transaction in bankruptcy cases, “the contract that both parties have not fulfilled completely” should be interpreted as a contract that both parties have not fulfilled or both parties’ main payment obligations have not been fulfilled completely. In view of the special ownership retention sales contracts and housing debt repayment contracts, the ownership retention sales contracts should be interpreted as unfinished contracts, and housing debt repayment contracts should be discussed according to the signing time of the contracts. On the basis of the explanation of restriction, we should draw lessons from the test of excessive burden and the test of balance of interests abroad to restrict the administrator's right to choose.