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解除权本质上属于一种形成权,即以权利人单方的意思表示就可使合同权利义务关系发生、变更或消失。债务人不履行到期债务,债权人可以留置已经合法占有的债务人的动产,并有权就该动产变现所有价款优先受偿。合同解除是合同权利义务终止的一项重要制度,也是合同法中违约救济的一个手段,但是对于合同解除的性质与效力,如合同解除后是否导致合同无效,已经履行部分的恢复原状系根据物权返还请求权还是债权请求权等问题,理论界与司法实务界存在不同的观点。解除权的定性关系到双方当事人合同利益的保护,不仅需要理论体系上的完备,更需要司法实践的检验。
The right of removal is essentially a right of formation, that is, the unilateral right of the obligee means that the contractual rights and obligations can occur, change or disappear. If the obligor fails to perform the debts due, the obligee may retain the movable property of the obligor who has legally been in possession and has the right to realize the priority of repayment of all the proceeds of the movable property. The rescission of the contract is an important system of termination of the contract rights and obligations and also a means of remedy of breach of contract in the contract law. However, the nature and effectiveness of the rescission of the contract, such as whether the contract is invalidated after the termination of the contract, The right to return the right to claim or claims and other issues, the theoretical community and the judiciary there are different points of view. The nature of the right of termination relates to the protection of contract interests of both parties, which not only requires the completeness of the theoretical system but also requires the test of judicial practice.