我国借鉴预期违约制度之检讨分析

一般认为,对于履行期到来之前拒绝履行合同或不能履行的,英美法上的预期违约制度较为理想,但这一问题在大陆法上仍然可以通过其固有的框架来解决,那就是拒绝履行和不安抗辩权制度。我国新合同法虽然借鉴了预期违约制度,但其规定的实质仍然是拒绝履行而不是预期违约,而对预期违约的借鉴对我国的合同法产生了不利的影响。

A Study on Learning from Anticipatory Breach of Contract

Generally speaking, anticipatory breach of contract of Anglo-American Law is a good way to treat repudiation or frustration of contract before the deadline for performance. Furthermore, this problem can be resolved by repudiation rule and rule of uneasy-reject, which are within the frame of system of civil law. Although contract law of PRC has drawn lessons from anticipatory breach of contract, the essence of the provision is repudiation rule but not anticipatory breach of contract. And the learning has had bad influence on the contract law of PRC.