违约责任与风险负担

风险负担与违约责任是共同处理标的物毁损灭失案型的两项不同制度。在我国违约责任的归责原则实现了由过错责任向严格责任转化的情况下,风险负担制度的内涵与适用范围应作相应的调整。违约之际风险负担的处理涉及到这两项制度的协调与配合的复杂关系。在履行迟延期间标的物毁灭时,原则上应使违约方当事人承担风险。对质的不完全履行之际的风险负担问题,国际公约、各国或各地区立法不一,对我国现行法律进行体系解释可知,当买受人拒绝接受标的物或者解除合同的,由出卖人承担风险,否则则由买受人承担风险,不过,买受人仍享有违约救济权。在违约之际的风险负担问题上,我国现行法律还存在若干漏洞,应予填补。

Liability for Breach and Risk-assuming

Risk-assuming and liability for breach of contract are two different systems on dealing with cases of objects damaged or lost. In our country, doctrine of liability fixation has converted from fault liability to strict liability, so connotation and adjustment range of risk-assuming should be changed correspondently. Disposal of risk-assuming after breached contract is related to coordination of the two systems. If objects damaged or lost during period of delayed performance, party in default should assume risk. Risk-assuming of incomplete performance has different opinions between international treaties and domestic legislations. It can be concluded through interpretation of system to our existing laws that if the buying party refused to accept objects or dissolution of contract, the seller should assume risk. Otherwise, the buying party should assume risk. In this case, however, the buying party has remedy rights. In our current laws, there are many mischief rules and the defects should be remedied.