作者：朱美聪律师     2016-12-28

摘 要：在当前经济形势下，合同不能正常履行的情况时有发生，此时解除合同通常是处理双方当事人之间法律关系的一个有效方法。但合同解除的法律后果尤其是损害赔偿问题在理论上一直争议颇多，我国现行法律对损害赔偿的范围和标准也没有明确的规定，审判实务中也常出现迥异的裁判结果。本文试就合同因违约而解除后的损害赔偿问题加以探讨，以期能对合同解除制度的完善有所裨益。

关键词：合同解除；损害赔偿；信赖利益；可得利益

问题之提出

2008年3月, 台州某公司（甲公司） 与无锡某公司( 乙公司) 签订了一份雕刻机购销合同。 乙公司向甲公司订购5台雕刻机，价格每台170000元，总价850000元，合同中双方对产品规格、质量、款项支付、验收方法、交货日期和违约金等作了约定。根据约定，乙公司需在合同签订当日预付每台20000元共计100000元货款，在收到甲方书面提货通知后3天内支付400000元，提货当日再支付150000元，余款100000元作为质量保证金，在交货后半年内无重大质量问题时一次性付清。乙公司在支付预付款100000元后，因受国际金融危机影响，其出口工艺品订单大幅减少，不再需要用来制作生产工艺品的雕刻机。因此在收到甲公司提货通知书后，一直没有按约定支付第二笔货款，并曾口头向甲公司表示不再需要雕刻机。甲公司多次要求乙公司继续履行合同，按约支付货款，乙公司收函后仍拒绝履行。甲公司在乙公司不可能继续履行合同的情况下，书面通知乙公司解除双方签订的购销合同，后即向法院起诉要求乙公司根据合同约定支付违约金和赔偿损失。

在本案中,乙公司构成违约毫无疑问, 合同解除也并无疑问。但本案可以引出二个理论问题: 一是合同解除与损害赔偿能否并存；二是如何界定因合同解除而产生的损害赔偿范围和标准。本文将仅讨论合同因违约而解除的损害赔偿问题。

一、合同解除与损害赔偿能否并存

考察各国法律规定及理论学说, 关于合同解除与损害赔偿的关系即能否同时并存主要有两种观点: 其一是以德国为代表的选择主义。 即债务不履行时, 债权人得就解除合同或债务不履行之损害赔偿之间择一行使。二者互相排斥, 不能并存。但在德国债法修改后，即根据《德国债务法修改委员会最终报告书》中的规定，德国已经放弃了此种观点，向承认解除与损害赔偿并存方面转化。其二是法国、日本、瑞士、意大利为代表的两立主义, 主张债权人得于合同解除的同时请求损害赔偿, 合同解除不影响当事人要求赔偿损失的权利。①关于合同解除与损害赔偿的关系, 我国《民法通则》和《合同法》均有规定。《民法通则》第 115 条规定:“合同变更或者解除, 不影响当事人要求赔偿损失的权利。”《合同法》第 97 条规定:“合同解除后, 尚未履行的, 终止履行, 已经履行的, 根据履行情况和合同性质,当事人可以要求恢复原状, 采取其他补救措施, 并有权要求赔偿损失。”因此, 我国法律承认合同解除与损害赔偿是可以并存的。

虽然对于合同解除和损害赔偿可以并存, 学术界已无太大争论, 但对于二者之所以可以并存的法理依据, 却有不同的认识： 一是债务不履行之损害赔偿说, 即违约损害赔偿, 认为因债务不履行而发生的损害赔偿在合同解除前就已经存在, 不因合同的解除而丧失。二是信赖利益说, 认为合同因解除而消灭, 所以不再有基于债务不履行的损害赔偿责任, 但在一方违约的情况下, 非违约方会遭受因相信合同继续存在而实际不存在所致的损害, 即信赖利益的损害。 之所以出现损害赔偿说和信赖利益说之争, 皆缘于传统民法对合同解除标的的理解错误。传统民法认为,合同解除的标的是有效合同, 合同一经解除, 将整体上不复存在。于是, 就出现了合同已不存在, 而又要依据合同寻求损害赔偿这一法律逻辑上的矛盾。

解决这个问题, 还需从合同的内容入手。薛孝东认为合同的内容是指当事人的权利和义务，可分为原始性权利义务和救济性权利义务, 原始性权利义务是指当事人为合同完全履行所设定的权利义务, 它要求当事人按合同中对合同标的及其质量、数量及履行期限、履行地点等的约定履行,原始性权利义务的实现意味着合同得到了完全履行。救济性权利义务, 是指在原始性权利义务未能实现的情况下, 为实现合同目的而采取的违约救济方式。就权利而言有合同解除权、违约损害请求权等。②合同解除的标的是合同中的原始性权利义务，并不解除救济性权利义务。③因此, 合同解除后, 当事人仍然可以依据合同中救济性权利义务的约定或者依据法律关于救济性权利义务的规定请求损害赔偿, 这样一来, 合同解除与损害赔偿之间也就不存在法律逻辑上的障碍了，合同解除与损害赔偿完全可以并立。

二、合同解除后损害赔偿的范围界定

（一）损害赔偿范围中的合同利益

确定解除合同的损害赔偿范围关系到合同解除相关当事人利益能不能得到充分贴切的保护,相关当事人的利益的能否平衡，并最终关系到合同解除制度的规范功能的行使和目的能否得以实现, 不可谓不重要。因此，在探讨合同解除后损害赔偿的范围之前，有必要先对合同解除后的各种利益作个了解。对于合同利益，英美法系和大陆法系有着不同的概念表述。

1、英美法系中合同解除后涉及的三种利益。美国法学家富勒在 20世纪30年代发表的《合同的损害赔偿中的信赖利益》一文中，把合同损害赔偿所追求的目的区分为三种：返还利益、信赖利益和期待利益。现英美法已普遍接受了该文提出的观点。返还利益（the  restitutiaon  interst）指基于对被告之允诺的信赖，原告向被告交付了某些价值，被告未履行其允诺，法院可以迫使被告交出他从原告处接受的价值。此处受保护的利益可叫作返还利益。其次，基于对被告之允诺的信赖，原告改变了他的处境。我们可判给原告损害赔偿以消除他因信赖被告之允诺而遭受的损害。在这种场合受保护的利益可叫作信赖利益(the reliance interest)。再次，不去固守受诺人的信赖或允诺人的得利，可以寻求给予受诺人由允诺形成之期待的价值，可以在一个特定履行诉讼中实际强迫被告向原告提供允诺了的履行；或者在一个损害赔偿诉讼中，可以使被告支付这种履行的金钱价值。在这里我们的目标是使原告处于假若被告履行了其允诺他所应处的处境。在这种场合所保护的利益，我们可以叫作期待利益（the expectation interest）。

2、大陆法系的所受损失和所失利益。大陆法系普遍使用的违约损害赔偿范围的概念是所受损失和所失利益, 也就是我国学说通常所称的直接损失（信赖利益）和间接损失（可得利益）。所受损失, 亦称积极损害, 指赔偿权利人现有财产的减少; 所失利益指赔偿权利人财产应增加而未增加的额数。一般认为, 返还利益、信赖利益属于所受损失的范围, 期待利益属于所失利益的范围。

（二）我国合同法和理论界关于合同解除损害赔偿范围的观点

《合同法》第97条规定：合同解除后，尚未履行的，中止履行；已经履行的，根据履行情况和合同性质，当事人可以要求恢复原状、采取其他补救措施，并有权要求赔偿损失。但这个损失的范围到底是什么却没有明确的规定，造成了法官在确定损害赔偿范围时的不统一。理论界则主要对损害赔偿范围仅仅是指信赖利益（英美法系中的返还利益和信赖利益，大陆法系中的所受损失）还是包括可得利益损失（英美法系中的期待利益，大陆法系中的所失利益），存在很大分歧。

一种观点认为,守约方所遭受的一切损害均可以请求赔偿,既包括债务不履行的损害赔偿,也包括因合同解除所产生的损害赔偿,既包括直接利益的损失,也包括可得利益的损失。④另一种观点认为，在当事人对合同解除未明确约定损害赔偿标准的情形下,合同解除的损害赔偿范围为信赖利益，不包括可得利益。持第二种观点的学者认为：1．在一方违约的情况下,守约方具有多种选择,既可以要求违约方继续履行,支付违约金、赔偿损失，也可以要求解除合同,并赔偿因合同解除所造成的直接损失。而通常，守约方会选择对自已最有利、对违约方最不利的处理方式；2．可得利益只有在合同完全履行的情况下才有可能产生,守约方如欲取得可得利益,可以选择继续履行合同,并通过要求违约方支付违约金、赔偿损失等方式制裁违约方,保护自己的利益。反之,守约方如果选择了解除合同,就说明其不愿意继续履行合同,因合同履行才能产生的可得利益,当然也不应再支持。所以当事人解除合同的主张成立后,不能赔偿可得利益的损失。⑤

笔者认为上述第二种观点存在不妥之处，首先，还是源于对合同解除标的的错误理解，认为合同解除的标的是整个合同关系。前面已论证合同解除的标的只是合同中的原始性的权利义务，所以就不会存在超出合同解除效力达到的范围问题。其次，不是守约方不愿意继续履行合同，而是由于违约方的严重违约导致合同目的落空，守约方在有足够证据证明违约方不会履行合同的情况下，选择解除合同是在其迫不得已的情况下所采取的一种能及时、有效保护自己利益的补救方式，使本应获得的利益不会因对方的违约行为而无法实现。可得利益固然只有在合同完全履行时才有可能产生，但是，我们不应忽略导致合同没有完全履行的原因可归责于责任方事由的现实，也不应忽略“权利人已经为这种利益的实现和取得做了必要准备，在客观上它已经具备了转化为现实的基础和条件”⑥（P2407）的实际情况。

（三）、合同解除后损害赔偿的范围应包括可得利益

笔者认为，合同解除后损害赔偿的范围应包括可得利益部分，理由如下：

1、符合当事人订立合同的目的。合同的目的，是合同当事人通过合同内容所要实现的一定的利益，也就是假设合同如期履行，权利人将得到的利益，即可期待利益。实现合同目的，可以通过原始性权利义务或救济性权利义务的实现。合同解除是在当事人无法通过原始性权利义务来实现合同目的（可期待利益）时，通过救济性权利义务来实现合同目的一种方式。此时，救济性权利当然包括了要求对方赔偿可得利益损失。

2、符合法律的规定。根据《民法通则》第115条、《合同法》第97条的规定，合同的解除不影响当事人要求赔偿损失的权利，而这里所指的“损失”无论在理论界还是实务界均没有排除间接损失，即可得利益的损失;

3、符合合同解除制度的价值。周全地保护守约方的利益，这是合同解除制度的立法目的和价值所在。在因一方当事人违约而解除合同的情况下，要求违约方承担赔偿责任是合同责任 “令非违约方利益不受损”之归责原则的体现。

4、符合合同法的诚实守信原则。如果合同解除后，只能请求赔偿恢复原状和赔偿信赖利益损失，这明显有违诚实信用原则。当事人在订立合同后，对方当事人的适当全面履行为其最基本的期待，其当然有可能也有理由以此种期待为动因与他人再订立合同以谋求更大利益，当这种“谁都看得见的利益”因对方当事人的违约而丧失时，不支持其可得利益损失，无疑有纵容当事人违约之嫌，有违诚实信用原则。⑦

三、对我国《合同法》第九十七条的修改建议

（一）我国现行《合同法》对合同解除后损害赔偿的规定

对于合同解除后的损害赔偿问题，我国《合同法》仅在其第九十七条作了非常原则的规定，该条内容为：“合同解除后，尚未履行的，终止履行；已经履行的，根据履行情况和合同性质，当事人可以要求恢复原状、采取其他补救措施，并有权要求赔偿损失。”

可以看出我国《合同法》对于合同解除后损害赔偿的问题采取了过分灵活的规定，特点就是具有高度概括性，法律条文过于简略，毫无实际操作性。所造成的后果就是无论是理论界还是实务界，对该问题的争议都极大。实践中，使人们在面对错综复杂的个案时，常常对合同解除后的情况处理变得不知所措，歧见丛生。在审判实务中也常出现迥异的裁判结果，使法官在审理案件时进退两难，适用法律的难度大大增加。对当事人及其代理人来说，案件的不可预见性也大大增加。这种最后造成法律确定性丧失的规定，实可称为我国现行《合同法》的一大遗憾。

（二）、英美法对合同解除损害赔偿范围的规定特点

英美合同法对于合同解除损害赔偿的规定，不但明确的确立了期待利益、信赖利益和无偿得利三种计算方法，同时还考虑到受害人的具体损失、非金钱损失和其他因素。其相关规定的特点是设计十分严谨，规定十分明确、详细，可操作性强，值得我国借鉴。首先，英美合同法均规定了合同因违约被解除时，受害方可以要求赔偿信赖利益，无过错方可以就其期待利益的损失要求全部赔偿，⑧对于期待利益的计算方法，《美国第二次合同法重述》第347条进行了规定，该条规定：受害方基于期待利益请求的数额通过以下的方式计算：（1）受害方因违约方不履行或不完全履行造成的对完全履行条件下可获得合同利益的减损；加上（2）因违约所致的偶然或必然的其他损失；减去（3）受害方因不必履行而避免发生的成本或其他损失。也就是说，赔偿金=（合同价值的减损+其他损失）-避免掉的成本花费-避免掉的损失）。⑨对于信赖利益，也有具体条款对于信赖利益进行定义和计算方法进行具体规定等。如第349条规定：受损方因为信赖利益获得的赔偿，包括准备履行或者履行的花费、违约方有合理的必然性证明受损方因为履行合同而减少的任何损失。

（三）对我国《合同法》第97条的立法建议

法律作为指引人们行为的规范，应当仅可能作出明确具体的规定，上述英美法的做法值得我国《合同法》借鉴。我国《合同法》应当在吸取国际先进经验以及本土司法实践的基础上进一步完善。《合同法》第97条应该进行补充或者增加其他条款对合同解除的法律后果作出更细密的规定，以增强法律的可操作性，为市场经济的发展提供良好的制度支持。

笔者建议,《合同法》97条应该明确规定合同解除后，当事人要求赔偿损失的范围包括合同如果正常履行本可以获得的利益。同时，第97条可以参照原来《合同法 ( 建议草案)》第104条的做法，增设第第2款，明确规定赔偿损失的具体组成部分或计算方法，如规定: 合同解除时, 除法律另有规定或当事人另有约定外, 债权人可请求因合同解除而产生的损害赔偿范围包括: 债权人订立合同所支出的必要费用; 债权人因相信合同能够履行而作准备所支出的必要费用; 债权人因失去同他人订立合同的机会所造成的损失; 债权人已经履行合同义务时, 债务人因拒不履行返还给付物的义务给债权人造成的损失; 债权人已经受领债务人的给付物时, 因返还该物而支出的必要费用。对于期待利益损失，可以规定一个具有操作性的计算方法，如上文提到的《美国第二次合同法重述》第347条对期待利益数额的计算方法。

参考文献：

【1】 蔡立东：《合同解除制度的重构》, 载《法律与社会发展》2001 年第 5 期。

【2】【3】 薛孝东：《合同解除的标的新论》，载《甘肃政法学院学报》2004年2月，总第72期。

【4】【7】 袁小梁：《析合同解除的三点争议》，载《法律适用》2004年第2期。

【5】 高苹：《合同解除后的损害赔偿问题浅析》，载《法学》2006年第1期。

【6】 王利明著：《民商法理论和实践》，吉林人民出版社1996年版。

【8】 李先波著：《英美合同解除制度研究》，北京大学出版社2008，转引自【英】P.S.阿狄亚：《合同法导论》赵旭东、何帅领、邓晓霞译：法律出版社2002年版，第747页。

【9】 李先波著：《英美合同解除制度研究》，北京大学出版社2008版.转引自徐罡、宋岳、覃宇：《英美合同判例法》，法律出版社1999年版，第189页。

Author: Lawyer Zhu Meicong, December 28, 2016

Abstract: In the current economic situation, situations where contracts cannot be fulfilled normally often occur, and rescission of contracts is usually an effective way to handle the legal relationship between the two parties. However, the legal consequences of contract termination, especially the issue of compensation for damages, have always been controversial in theory. The current laws in China do not have clear provisions on the scope and standards of compensation for damages, and there are often different judgments in judicial practice. This article attempts to explore the issue of compensation for damages after a contract is terminated due to breach of contract, in order to contribute to the improvement of the contract termination system.

Keywords: Contract termination; Compensation for damages; Trust interests; Obtainable benefits

Question raising

In March 2008, a company in Taizhou (Company A) signed a purchase and sales contract for carving machines with a company in Wuxi (Company B). Company B ordered 5 carving machines from Company A at a price of 170000 yuan each, with a total price of 850000 yuan. The contract stipulates the product specifications, quality, payment, acceptance method, delivery date, and penalty. According to the agreement, Company B shall prepay a total of 20000 yuan per unit on the day of contract signing, totaling 100000 yuan. Within 3 days after receiving a written notice of delivery from Party A, Company B shall pay 400000 yuan. On the day of delivery, Company B shall pay an additional 150000 yuan. The remaining 100000 yuan shall be used as a quality deposit, and shall be paid in full once there are no major quality issues within six months after delivery. After paying a prepayment of 100000 yuan, Company B's export handicraft orders have significantly decreased due to the impact of the international financial crisis, and there is no longer a need for carving machines used to produce handicrafts. Therefore, after receiving the delivery notice from Company A, the second payment for the goods has not been made as agreed, and has verbally stated to Company A that the carving machine is no longer needed. Company A has repeatedly requested Company B to continue fulfilling the contract and make payment as agreed, but after receiving the letter, Company B still refuses to fulfill it. In the event that Company B is unable to continue fulfilling the contract, Company A shall notify Company B in writing to terminate the purchase and sales contract signed by both parties, and then file a lawsuit with the court requesting Company B to pay liquidated damages and compensate for losses in accordance with the contract.

In this case, there is no doubt that Company B constitutes a breach of contract, and there is no doubt about the termination of the contract. But this case can raise two theoretical questions: firstly, can contract termination and compensation for damages coexist; The second is how to define the scope and standards of compensation for damages arising from the termination of the contract. This article will only discuss the issue of damages for contract termination due to breach of contract.

1、 Can Contract Termination and Compensation Coexist

There are two main views on the relationship between contract termination and compensation for damages, whether they can coexist simultaneously, based on the legal regulations and theoretical theories of various countries. One is the selectivism represented by Germany. When the debt is not fulfilled, the creditor may choose between terminating the contract or compensating for the damages caused by the non performance of the debt. The two are mutually exclusive and cannot coexist. However, after the modification of German debt law, that is, according to the provisions of the Final Report of the German Debt Law Amendment Commission, Germany has abandoned this view and shifted to the recognition of the coexistence of relief and damages. The second is the dualism represented by France, Japan, Switzerland, and Italy, which advocates that creditors can request compensation for damages at the same time as the contract is terminated, and the termination of the contract does not affect the right of the parties to claim compensation for losses The relationship between contract termination and compensation for damages is stipulated in both the General Principles of the Civil Law and the Contract Law of China. Article 115 of the General Principles of the Civil Law stipulates: "The modification or termination of a contract shall not affect the right of the parties to claim compensation for losses." Article 97 of the Contract Law stipulates: "After the termination of a contract, if the contract has not yet been performed, the performance shall be terminated. If the contract has already been performed, the parties may demand restoration to its original state, take other remedial measures, and have the right to demand compensation for losses based on the performance and nature of the contract, Chinese law recognizes that contract termination and compensation for damages can coexist.

Although there is no significant debate in the academic community regarding the coexistence of contract termination and compensation for damages, there are different understandings of the legal basis for the coexistence of the two. Firstly, there is the theory of compensation for breach of contract damages for non performance of debts, which holds that compensation for damages caused by non performance of debts already exists before the termination of the contract and is not lost due to the termination of the contract. The second is the theory of reliance interest, which holds that the contract is extinguished due to termination, so there is no longer any liability for damages based on non performance of the debt. However, in the event of a breach by one party, the non breaching party will suffer damage caused by believing that the contract continues to exist but does not actually exist, that is, the loss of reliance interest. The dispute between the theory of compensation for damages and the theory of reliance on interests arises from the misunderstanding of the subject matter of contract termination in traditional civil law. Traditional civil law believes that the subject of contract termination is a valid contract, and once the contract is terminated, it will no longer exist as a whole. As a result, there emerged a legal logic contradiction of seeking compensation for damages based on the contract, which no longer exists.

To solve this problem, we still need to start with the content of the contract. Xue Xiaodong believes that the content of a contract refers to the rights and obligations of the parties, which can be divided into primitive rights and obligations and remedial rights and obligations. Primitive rights and obligations refer to the rights and obligations set by the parties for the complete performance of the contract. It requires the parties to perform according to the provisions of the contract regarding the subject matter, quality, quantity, performance period, and performance location. The realization of primitive rights and obligations means that the contract has been fully fulfilled. Remedial rights and obligations refer to the remedies for breach of contract taken to achieve the purpose of the contract in the event that the original rights and obligations are not fulfilled. In terms of rights, there are the right to terminate the contract, the right to request breach of contract damages, etc The subject matter of contract termination is the original rights and obligations in the contract, and does not relieve the remedial rights and obligations Therefore, after the termination of the contract, the parties can still request compensation for damages based on the provisions of remedial rights and obligations in the contract or in accordance with the provisions of the law on remedial rights and obligations. In this way, there is no legal logical obstacle between contract termination and compensation for damages, and contract termination and compensation for damages can completely coexist.

2、 Definition of the scope of compensation for damages after contract termination

（1） Contractual benefits within the scope of compensation for damages

The determination of the scope of damages for contract termination is related to whether the interests of the parties involved in contract termination can be fully and appropriately protected, whether the interests of the parties involved can be balanced, and ultimately whether the normative function and purpose of the contract termination system can be realized. It is not important. Therefore, before exploring the scope of compensation for damages after contract termination, it is necessary to first understand the various benefits after contract termination. There are different conceptual expressions for contractual interests in the Anglo American and Continental legal systems.

1. The three types of interests involved in the termination of a contract in the Anglo American legal system. American jurist Fuller, in his article "Reliance Interests in Contract Damage Compensation" published in the 1930s, distinguished the purposes pursued by contract damage compensation into three types: return interest, reliance interest, and expected interest. The viewpoint proposed in this article has been widely accepted in both English and American law. The restitution interest refers to the trust in the defendant's promise, in which the plaintiff delivers certain value to the defendant, but the defendant fails to fulfill their promise. The court can force the defendant to surrender the value he accepts from the plaintiff. The protected benefits here can be referred to as return benefits. Secondly, based on trust in the defendant's promises, the plaintiff changed his situation. We can award damages to the plaintiff to eliminate the damage he suffered due to reliance on the defendant's promise. The benefit protected in this situation can be called the reliance interest. Once again, instead of sticking to the promisee's trust or the promisor's gain, one can seek to give the promisee the value of the expectation formed by the promise, and can actually force the defendant to provide the promised performance to the plaintiff in a specific performance lawsuit; Alternatively, in a damages lawsuit, the defendant may be required to pay the monetary value of such performance. Our goal here is to put the plaintiff in the position they would have been in if the defendant had fulfilled their promise. The interests protected in this situation can be called the expected interest.

2. The losses and benefits suffered by the civil law system. The concept of the scope of compensation for breach of contract damages commonly used in the continental legal system is the loss suffered and the lost interest, which is commonly referred to in Chinese theory as direct loss (reliance interest) and indirect loss (obtainable interest). The loss suffered, also known as positive damage, refers to the reduction of the existing property of the compensation right holder; The lost interest refers to the amount of compensation that the property of the right holder should have increased but not increased. It is generally believed that the return of benefits and reliance on benefits belong to the scope of the losses suffered, while the expected benefits belong to the scope of the lost benefits.

（2） Views on the scope of compensation for damages caused by contract termination in China's contract law and theoretical circles

Article 97 of the Contract Law stipulates that after the termination of the contract, if the performance has not yet been fulfilled, the performance shall be suspended; If it has already been fulfilled, the parties may demand restoration to its original state or take other remedial measures based on the performance and nature of the contract, and have the right to demand compensation for losses. However, there is no clear definition of the scope of this loss, resulting in inconsistency among judges in determining the scope of compensation for damages. There is a significant disagreement in the theoretical community regarding whether the scope of compensation for damages only refers to reliance interests (return interests and reliance interests in the Anglo American legal system, losses suffered in the Continental legal system) or includes loss of obtainable interests (expected interests in the Anglo American legal system, and lost interests in the Continental legal system).

One view is that all damages suffered by the non performing party can be claimed for compensation, including damages for non performance of the debt and damages arising from the termination of the contract, including losses of direct benefits and losses of obtainable benefits Another view is that in the absence of a clear agreement on the standard of compensation for damages by the parties to the termination of the contract, the scope of compensation for damages in the termination of the contract is trust interests, excluding obtainable interests. Scholars who hold the second view believe that: 1. In the event of a breach by one party, the non breaching party has multiple options. They can either demand that the breaching party continue to perform, pay liquidated damages, compensate for losses, or demand the termination of the contract and compensate for direct losses caused by the termination of the contract. Usually, the complying party will choose the most favorable treatment for itself and the most unfavorable treatment for the defaulting party; 2. The obtainable benefits can only arise when the contract is fully fulfilled. If the observant party wishes to obtain the obtainable benefits, they can choose to continue performing the contract and sanction the defaulting party by requiring them to pay liquidated damages, compensate for losses, and other means to protect their own interests. On the contrary, if the non breaching party chooses to terminate the contract, it indicates that they are unwilling to continue performing the contract. The benefits that can only be obtained from the performance of the contract should no longer be supported. So after the claim of the parties to terminate the contract is established, they cannot compensate for the loss of available benefits

The author believes that the second viewpoint mentioned above is inappropriate. Firstly, it stems from a misconception about the subject matter of contract termination, believing that the subject matter of contract termination is the entire contractual relationship. As previously demonstrated, the subject matter of contract termination is only the original rights and obligations in the contract, so there will be no problem beyond the scope of the effectiveness of contract termination. Secondly, it is not that the non defaulting party is unwilling to continue performing the contract, but rather that the serious breach of contract by the defaulting party has resulted in the purpose of the contract being frustrated. When the non defaulting party has sufficient evidence to prove that the defaulting party will not perform the contract, choosing to terminate the contract is a timely and effective remedy taken by the non defaulting party under their own circumstances, which can protect their own interests in a timely and effective manner, so that the benefits that should have been obtained will not be impossible to be realized due to the other party's breach of contract. Although the obtainable benefits may only arise when the contract is fully performed, we should not overlook the reality that the reasons for the incomplete performance of the contract can be attributed to the responsible party, nor should we ignore the fact that "the right holder has made necessary preparations for the realization and acquisition of such benefits, and objectively it has already had the foundation and conditions to transform into reality" ⑥ (P2407).

（3） The scope of compensation for damages after the termination of the contract should include available benefits

The author believes that the scope of compensation for damages after the termination of the contract should include the portion of available benefits, for the following reasons:

1. Meets the purpose of the parties entering into the contract. The purpose of a contract is to achieve certain benefits through the content of the contract, that is, assuming that the contract is fulfilled as scheduled, the rights holder will receive the expected benefits. The purpose of the contract can be achieved through the realization of original rights and obligations or remedial rights and obligations. Termination of a contract is a way of achieving the purpose of a contract through remedial rights and obligations when the parties are unable to achieve the intended benefits through their original rights and obligations. At this point, remedial rights naturally include demanding compensation from the other party for the loss of available benefits.

2. Comply with legal provisions. According to Article 115 of the General Principles of the Civil Law and Article 97 of the Contract Law, the termination of a contract does not affect the right of the parties to claim compensation for losses, and the term "loss" referred to here does not exclude indirect losses, namely loss of benefits, in both theoretical and practical fields;

3. The value of complying with the contract termination system. The legislative purpose and value of the contract termination system lies in comprehensively protecting the interests of the complying parties. In the case of termination of the contract due to the breach of contract by one party, requiring the defaulting party to bear compensation responsibility is a manifestation of the principle of contractual liability that "ensures that the interests of the non defaulting party are not damaged".

4. The principle of honesty and trustworthiness in accordance with contract law. If the contract is terminated, only compensation for restoration to its original state and loss of trust interests can be requested, which clearly violates the principle of good faith. After a party enters into a contract, the appropriate and comprehensive performance of the other party is their most basic expectation. Of course, they may also have reasons to use this expectation as a motivation to enter into a contract with others to seek greater benefits. When this "visible benefit" is lost due to the other party's breach of contract, not supporting the loss of their available benefits is undoubtedly a suspicion of condoning the party's breach of contract and violating the principle of good faith. ⑦

3、 Suggestions for Amending Article 97 of China's Contract Law

（1） Provisions on Compensation for Damage after Contract Termination in the Current Contract Law of China

Regarding the issue of compensation for damages after the termination of a contract, China's Contract Law only provides a very principled provision in Article 97, which reads: "After the termination of the contract, if the contract has not yet been performed, performance shall be terminated; if the contract has already been performed, the parties may demand restoration to its original state, take other remedial measures, and have the right to demand compensation for losses based on the performance and nature of the contract

It can be seen that China's Contract Law adopts overly flexible provisions on the issue of compensation for damages after contract termination, characterized by a high degree of generality, and the legal provisions are too brief and lack practical operability. The consequence is that there is a great deal of controversy over this issue in both theoretical and practical fields. In practice, when facing complex cases, people often become confused and have divergent opinions on how to handle the situation after contract termination. In judicial practice, there are often vastly different judgment results, which puts judges in a dilemma when trying cases and greatly increases the difficulty of applying the law. For the parties and their agents, the unpredictability of the case has also greatly increased. This provision, which ultimately leads to the loss of legal certainty, can be considered a major regret in China's current Contract Law.

（2） Characteristics of the provisions of Anglo American law on the scope of compensation for damages caused by contract termination

The provisions of the Anglo American Contract Law on compensation for damages caused by contract termination not only clearly establish three calculation methods: expected interest, reliance interest, and free gain, but also take into account the specific losses, non monetary losses, and other factors of the victim. The characteristic of its relevant regulations is that the design is very rigorous, the regulations are very clear and detailed, and the operability is strong, which is worth learning from in China. Firstly, both British and American contract laws stipulate that when a contract is terminated due to breach of contract, the aggrieved party can demand compensation for the reliance interest, and the innocent party can demand full compensation for the loss of their expected interest. ⑧ For the calculation method of expected interest, Article 347 of the Second Restatement of Contract Law of the United States stipulates, This provision stipulates that the amount requested by the aggrieved party based on expected benefits shall be calculated by the following method: (1) the impairment of the contractual benefits that can be obtained under the condition of full performance caused by the defaulting party's failure or incomplete performance; Add (2) incidental or inevitable other losses caused by breach of contract; Subtract (3) the costs or other losses avoided by the injured party due to not having to perform. That is to say, compensation=(reduction in contract value+other losses) - avoided costs - avoided losses) For trust interests, there are also specific provisions defining trust interests and specifying calculation methods. As stipulated in Article 349, compensation received by the aggrieved party due to reliance on interests, including expenses incurred in preparation for performance or performance, and any losses reduced by the aggrieved party due to performance of the contract, as evidenced by reasonable inevitability of the defaulting party.

（3） Legislative Suggestions on Article 97 of China's Contract Law

As a norm guiding people's behavior, the law should only make clear and specific provisions, and the above practices of British and American law are worth learning from in China's Contract Law. China's Contract Law should be further improved on the basis of absorbing advanced international experience and local judicial practice. Article 97 of the Contract Law should supplement or add other provisions to provide more detailed provisions on the legal consequences of contract termination, in order to enhance the operability of the law and provide good institutional support for the development of the market economy.

The author suggests that Article 97 of the Contract Law should clearly stipulate that after the contract is terminated, the scope of the parties' demand for compensation for losses includes the benefits that could have been obtained if the contract had been performed normally. At the same time, Article 97 can refer to the approach of Article 104 of the original Contract Law (Proposed Draft) and add a second paragraph, which clearly stipulates the specific components or calculation method of compensation for losses. For example, when the contract is terminated, unless otherwise provided by law or agreed by the parties, the creditor may request compensation for damages arising from the termination of the contract, including the necessary expenses incurred by the creditor in concluding the contract; The necessary expenses incurred by the creditor in preparation for believing that the contract can be fulfilled; Losses caused by creditors losing the opportunity to enter into contracts with others; The losses caused to the creditor by the debtor's refusal to fulfill the obligation to return the goods when the creditor has already fulfilled its contractual obligations; The necessary expenses incurred by the creditor for returning the debtor's property when the creditor has already received it. For the loss of expected benefits, an operational calculation method can be established, such as the calculation method for the amount of expected benefits in Article 347 of the Second Restatement of the United States Contract Law mentioned earlier.

Reference:

【1】 Cai Lidong: "Reconstruction of Contract Termination System", published in Law and Social Development, Issue 5, 2001.

【2】 Xue Xiaodong: "New Discussion on the Subject Matter of Contract Termination", published in Journal of Gansu University of Political Science and Law, February 2004, Issue 72.

【4】 Yuan Xiaoliang: "Analysis of Three Disputes over Contract Termination", published in the second issue of "Application of Law" in 2004.

【5】 Gao Ping: "Analysis of Compensation for Damage after Contract Termination", published in Law Journal, 2006, Issue 1.

【6】 Wang Liming: "Theory and Practice of Civil and Commercial Law", Jilin People's Publishing House, 1996 edition.

【8】 Li Xianbo: "Research on the System of Contract Termination in the UK and the United States", Peking University Press, 2008, cited from P.S. Adia: "Introduction to Contract Law" translated by Zhao Xudong, He Shualing, and Deng Xiaoxia: Law Press, 2002 edition, page 747.

【9】 Li Xianbo: "Research on the System of Contract Termination in the UK and the United States", Peking University Press, 2008 edition. Cited from Xu Gang, Song Yue, and Qin Yu: "Case Law of Contracts in the UK and the United States", Law Press, 1999 edition, p. 189.