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近年来关于自始履行不能致合同效力的理论和立法逐渐改变,趋势是自始不能不影响合同的有效成立。这种与传统理论相反的观点能很好的保护交易安全和无责任方的利益。我国立法未直接规定自始履行不能,但目前的立法对该类合同的规制是有效的。立法没有必要引进该概念,但需将这种情况下合同不能履行时的责任方式加以改进。
In recent years, the theory and legislation on the performance of contracts that can not be implemented from the beginning are gradually changing. The trend is that it can not but affect the effective establishment of the contract from the very beginning. This contrary to the traditional theory can well protect the interests of transaction security and non-responsibility parties. Our country’s legislation does not directly regulate the performance from the beginning can not, but the current legislation on the regulation of such contracts is valid. It is not necessary to introduce this concept in legislation, but the modus operandi of the contract at the time when the contract can not be fulfilled needs to be improved.