违约方合同解除权之实体研究

违约方在不具备合同约定和法定解除条件，也未能与守约方达成解除合同协议时，是否享有合同解除权，在学界及实务界均颇有争议。基于合同主体平等原则、合同自由原则、合同正义原则、合同效率价值以及节约社会资源要求，可赋予违约方以合同解除权。然基于契约严守原则，违约方解除合同应受到严格限制，缘于自由相对性及鼓励交易原则，如合同标的不可替代或者替代标的不具备现实性以及损失难以计算等，则不应赋予违约方合同解除权。一旦赋予违约方合同解除权，则须赔偿守约方的履行利益，包括合同约定价格与合同替代履行价格差额和合同替代履行费用等。

An Entitative Research on the Defaulting Party's Right to Terminate the Contract

Whether the defaulting party has the right to rescind the contract when it does not have the contractualand statutory conditions of rescission, and doesn''t achieve agreement to end the contract with the observant party iscontroversial in the academic and practical circles. However, based on the principle of equality of contract subjects,the principle of freedom of contract, the principle of justice of contract, the efficiency value of contract and therequirements of saving resource, the defaulting party is entitled to have the right to terminate the contract. However,based on the principle of adherence to the contract, the defaulting party''s right to terminate the contract should bestrictly limited, due to the relative freedom of law and encouraging trade principles. If contract subject can not bereplaced or the subject does not have an alternative reality as well as the loss is difficult to calculate, the defaultingparty should not be given the right to terminate the contract. Once the right to terminate the contract is given to thedefaulting party, they shall compensate the observant party''s performance interest, including the difference betweenthe agreed price and the price of fulfilling the contract substitution and the cost to fulfill the contract and so on.