“履行费用过高”作为排除履行请求权的界限——“新宇公司诉冯玉梅商铺买卖合同纠纷案”评析  

The Boundary of Using Excessive Cost of Performance as a Reason to Exclude the Right to Specific Performance——Analysis of the Case of Commercial Shop Sales Contract Disputes between Xinyu Company and Feng Yumei

作　　者：刘洋[1] 

机构地区：[1]浙江大学,浙江杭州310008

出　　处：《政治与法律》2018年第2期105-120,共16页Political Science and Law

摘　　要：我国《合同法》第110条第2项后半句为实际履行请求权设置了排除规则,其正当性基础并非合同目的不能实现或者经济效益分析,诚信原则的解读进路亦不尽妥当,对意思自治和自我决定的尊重才是其正当性来源。就规范功能而言,本规则属于法定的风险分配规则,以履行障碍之额外费用负担的配置为宗旨。具体操作上,应当对债权人利益与债务人负担进行评估和对比,并在个案中经由综合衡酌进行判断,其裁量导向须与实际履行原则的价值基点保持一致。就其与情势变更原则的关系而言,应区分对待额外费用溢出于牺牲界限之前与之后两种案型。在前者,我国《合同法》第110条第2项实际上为情势变更原则设定了排除标准;在后者,情势变更原则因其法律效果上的相对弹性而应优先适用。在实践中,当事人有一定的选择权。对于不可抗力导致的额外费用过高,应排除情势变更原则的适用,只能由履行费用过高规则调整。The second half of the sentence in Item 2 of the Article 1 l0 of Contract Law of China has set up the ＂exclusionary rule＂ for the right to specific performance. The foundation for its legitimacy does not comes from the impossibility of realizing the purpose of the contract or the analysis of economic benefits. The explanation through the principle of Good Faith is also not appropriate. It is only the respect for the au- tonomy of will and self-determination that serve as the source of its legitimacy. In terms of the normative function, this provision is a rule of statutory allocation of risks which aims to appropriately distribute the ad- ditional costs of overcoming performance obstacles. In terms of concrete application of this rule, the benefit of the creditor and the burden of the obligor should be appraised and compared and the judgment should be made after comprehensive consideration in each individual case. The orientation of discretion should comply with the value of the principle of specific performance. In terms of relationship with the doctrine of change of circumstances, two kinds of cases shall be distinguished, that is, one is before the additional cost excee- ding the sacrifice threshold and the other is after the additional cost exceeding the sacrifice threshold. As for the former, Item 2 of Article 110 of Contract Law of China has factually established a criterion for excluding the doctrine of change of circumstances. As for the latter, the doctrine of change of circumstances shall pre- vail due to the relative elasticity in its legal effect. However, in practice, parties have options to some extent. When the cost caused by force majeure （Act of God） is excessively high, the doctrine of change of circumstances shall be excluded and the rule of excessive performance cost shall be applied.

关 键 词：履行费用过高 履行请求权 意思自治 实际履行原则 风险分配 

分 类 号：DF522[政治法律—民商法学]