《合同法》预期违约阻却机制之建构评析

预期违约成立后,可因法定事由而发生违约属性的消解,从而构成预期违约的违约阻却。我国《合同法》在经由不安抗辩权机制发生的特殊预期违约制度中设定了预期违约阻却机制,其机制设定模式缺乏严谨,体系亦欠完备,有待补充与完善。

Exemption from an Anticipatory Breach in the Contract Act

Having been established, an anticipatory breach may be exempted, if there occurs any statutory event that results in the dissipation of a contract. The Contract Act of the PRC provides that where one party to a contract finds that the other party may not perform his obligation, the party may repudiate his own contractual duty before the time of performance. The liabilities of such an anticipatory breach may be exempted by assuming the other party's impossibility of performance of his contractual duty. But the relevant legal norms are not well provided for, so the regime concerned is defective and needs to be improved.