減損義務對履行請求權的限制及其路徑──破解合同僵局的一種思路

我國學界討論的合同僵局其實包含兩種不同情形：債權人在非金錢債務履行請求權被排除後不及時行使解除權所致的僵局；債務人履行困難意圖解約，且繼續履行將導致當事人雙方利益失衡，但債權人因有權請求繼續履行而不及時行使解除權所致的僵局。前者可通過適用《民法典》第580條第2款得以解決，但後者缺乏明確法律依據。對於第二種僵局，我國可借鑒域外法經驗，從減損義務的角度對債權人的履行請求權進行限制。比較法上就此存在直接和間接限制兩種路徑。在解釋論上，《民法典》具備採取間接限制路徑的可行性與合理性。在判斷債權人是否違反減損義務時，除了要考慮債權人能否合理進行替代交易及其困難度，還要考慮債務人一方因減損措施所能獲得的利益及此利益在何種程度內值得保護等因素。

The concept of contractual deadlock under discussion in China's academia has been manifested in two different situations. One refers to where a creditor fails to execute his right to terminate a contract in a timely manner when his right to non-monetary performance has been excluded. The other happens when a debtor has difficulty in performing a contract and intends to terminate the contract, and wherein the continuation of performance will lead to imbalance of benefits of two parties, but the creditor insists on his right to performance instead of terminating the contract in a timely manner. The former deadlock issue can be addressed by applying to para. 2 of Art. 580 of China's Civil Code, while there is an explicit absence of legal basis in the latter. To solve this problem, China could reference to the practice of foreign law by setting restriction to the creditor's right to performance from the perspective of mitigation. There exists a direct restricting approach and an indirect restricting approach to the understanding of the relationship between the two. To demonstrate from the perspective of law-interpretation analysis, the Civil Code has feasibility and rationality in adopting indirect restricting approach. To determine whether the creditor has violated his duty to mitigate or not, in addition to consider the creditor's capability of reasonably conducting substitute transaction and its difficulties thereof, we should also take into account the benefits that can be obtained by the debtor on the basis of mitigation measures and to what extent the benefits deserve protection.