提存论——《合同法》第101-104条的解释论

《合同法》中的提存属清偿提存,以提存代替清偿,达到使合同权利义务终止效果。提存是债务人与提存部门之间缔结的一种向第三人履行的保管合同。提存的原因分为三类,债权人拒绝受领、债权人不能受领以及债权人不确知。《合同法》并非不认有提存人取回提存物的权利,在解释上应当承认提存人有取回权。对提存消灭债务之效力,宜采“停止条件说”。由提存便当然发生债权人的提存物领取请求权和提存人的清偿拒绝权;仅当取回权消灭后,债务始真正(溯及自提存时)归于消灭。

On Deposit

Deposit in Contract Law of P.R. China is a kind of substitute of discharge. This kind of deposit is a deposit contract which should be performed to a third party. There are three main situations in which a obligor may deposit the subject-matter of its performance, namely the obligee refuses to accept a tender without a justifiable reason, the obligee is not able to accept a tender and the obligee is not exactly known. It cannot be inferred from the Contract Law that the depositor may not retake the subject-matter of the deposit, and the depositor should have a right of retake as a matter of interpretation. As to the discharge of the obligation as a effect of a deposit, a theory of suspensive conditions should be taken. According to the theory, as the natural effects of deposit, there should only be for the obligee a claim to collect the subject-matter of the deposit and for the obligor a right to refuse to perform once more. It is only by the time the right of retake vanished that the obligation is discharged definitely.