继续性合同解除制度探析

继续性合同解除制度无须采用终止、解除二元模式,可沿用现有解除概念,但应区分一时性合同与继续性合同的解除效力、条件。继续性合同解除条件规范应采取一般性规定与特殊性规定结合方式,赋予当事人更大解除自由,同时从实体和程序上予以相应限制。继续性合同解除原则上无溯及力,在确定损害赔偿范围时须注意对可得利益的界定。

Research on the Termination of Continuous Contract

The system about termination of continuous contract should not necessarily adopt the dual model that combines the termination of contracts and the rescission of contracts.Instead,the current concept of termination is practical but the effect and condition of termination of continuous contract and discrete contract should be separately defined.Specifications for the termination of continuous contract should be a unity of a general rule with some special rules,granting the involved parties more freedom of termination with relevant limitations at the same time both in subject and procedure.The termination of continuous contract should not have retroactive effect in principle,and great attention should be paid to the definition of obtainable profits when defining the scope of damages.