论和解合同

和解合同是当事人约定相互让步,以终止争执或排除法律关系不明确之状态的合同。构成和解合同,第一须有争执或法律关系不明确的状态的存在;第二须有终止争执或排除法律关系不明确状态的意思;第三须有相互让步。和解合同不必定为债权合同,而是有可能为物权合同或准物权合同;和解合同不必定为双务合同;和解合同为不要式合同。和解合同的典型内容为确定效力。

A Study on the Compromise Contract

Compromise contracts are contracts in which both of the parties yield to opposing party in order to terminate the dispute between each other concerning private rights or to obviate the uncertain state of the legal relation between the two parties. A compromise contract has three constitute elements: the first is that there exists the dispute or the uncertain state of the legal relation; the second is that there is a will to terminate the dispute or to obviate the uncertain state of the legal relation; and the third is that there is concession. A compromise contract is not necessarily a creditor's contract and may be a real contract. A compromise contract is unnecessarily a bilateral contract; a compromise contract belongs to informal contract. Ascertainable effect is the essential content of a compromise contract.