我国合同法中的"预期违约"制度

我国《合同法》制定之时有意识地引入英美预期违约制度,但引入之后其便与履行抗辩权制度纠缠不清,引发法律解释适用之难题。大陆法系的拒绝履行制度和履行抗辩权制度与英美法系的预期违约制度相对应,二者之间存在着实质的一致,因而完全可以将现行相关规定纳入大陆法系相应制度之中。鉴于我国系大陆法系的法律模式,宜将《合同法》第108条、94条第2款定位于大陆法系的拒绝履行制度,使其与第68、69条规定的不安抗辩权制度一起,共同应对英美法系预期违约制度所欲解决的问题。

The "Prospective Contract Breakage" System in the Chinese Contract Law

The prospective contract breakage system was introduced from Britain and the United States when the Contract Law was being formulated in China. But after its introduction, it was confused with the system of fulfillment demurring rights, which resulted in the problem of the applicability of legal explanation. The system of refusal to fulfill in the Continental system corresponds to the prospective contract breakage system in the British and US system. The two agree in essence and so the current regulations and stipulations can be included in the Continental legal system. As China follows the Continental mode, Article 108 and Article 94-2 of the Contract Law should be positioned in the system of refusal to fulfill in the Continental system. These two items, combined with the system of uneasy demurring rights, can resolve the problems that the prospective contract breakage system of the British and US system intends to solve.