解除效果折衷说之评论
崔建远解除效果折衷说之评论
Comments on the Eclectic Theory of the Effect of Contract Dissolution
期刊名称：《法学研究》
期刊年份：
作者：崔建远
单位：清华大学法学院
中文关键词：合同解除;折衷说;直接效果说;恢复原状;返还债务
英文关键词：dissolution of a contract;the theory of eclecticism;the theory of direct effect;restitution
中文摘要：
解除效果之折衷说不符合我国合同法第97条规定的文义和规范意旨；解除不消灭合同关系之说不符合客观事实；将恢复原状义务作为合同解除导致的返还债务存在着难以克服的弱点。折衷说对于我国合同法第98条的解读、对于合同与违约损害赔偿之间的依存关系的认识存在着误区，在利益衡量方面处于劣势。在合同无效、合同被撤销和合同解除三者之间关系的把握上，折衷说看错了法律评价的重心。折衷说关于解除权行使的行为引起物权变动之说不能成立。
英文摘要：
There are different opinions among scholars as to whether the legal effect of contract dissolution prescribed by Chinese Contract Law accords with the theory of direct effect or the theory of eclecticism. The theory of direct effect holds that the contract dissolution has the retroactive effect, and the obligations not carried out needs not to be performed any more, while the obligations already carried out should be restituted. And the theory of eclecticism believes that the obligations not carried out do not exist any longer from the time of dissolution, which accords with the theory of direct effect, while the obligations already carried out still exist and new obligation of restitution comes into being, which accords with the theory of indirect effect.This paper holds that, the theory of eclecticism does not accord with the literal and normal meaning of Article 97 of the Contract Law. The viewpoint that dissolution does not extinguish the contract and contractual relation violates the objective fact. Besides, the effect of dissolution is not limited to the obligation of restitution. The theory of eclecticism makes some mistakes in the interpretation of Article 98 of the Contract Law and the recognition of the dependence of compensation for default on the existence of the contract. It is also at a disadvantage in the balance of interests. As to the mutual relationship among invalidation, avoidance and dissolution of a contract, the theory of eclecticism misplaces the emphasis of the legal valuation. Finally, the viewpoint that the exercise of the right of dissolution leads to the change of property right held by the theory of eclecticism cannot be established.
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