我国“违约方司法解除权”的演进及未来发展

The Evolution and Future Development of the “Defaulting Party’s Right to Judicial Discharge” in China

摘要: 随着合同僵局问题的出现，学者就是否应当赋予违约方司法解除权产生了诸多争议，将其纳入民法典的过程也堪称曲折崎岖，屡次修改，删除又重新纳入。而今，法院受理违约方要求解除合同的案例数量逐年上升，该类案件的胜诉率也不断提高。与之相应的是守约方的损害难以得到全面的赔偿，或可引入获益交出机制和惩罚性违约赔偿责任进行利益调整。

Abstract: With the emergence of the problem of contract deadlock, scholars have generated many disputes over whether the breaching party should be granted the right of judicial rescission, and the process of incorporating it into the Civil Code is also a tortuous and rugged process, which has been repeatedly revised, deleted and reincluded. Today, the number of cases in which courts accept a breach of contract request for rescission is increasing year by year, and the success rate of such cases is also increasing. Correspondingly, it is difficult for the non-breaching party to obtain full compensation for the damages, or the benefit adjustment can be adjusted by introducing the benefit surrender mechanism and punitive breach of contract liability.