論民法上和解契約之效力

Abstract

和解契約之目的在於定紛止爭，因此其本質上即係為除去不明確之法律關係，至於和解契約另為其他有別於爭執法律關係中的權利義務之規定，原屬私法自治原則下所容許者，故民法七百三十七條應僅係訓示規定而已。從而，實務上向來將和解區分為創設性和解、認定性和解而異其法律效果，應屬誤會。同理，倘若法律關係並無不明確可言，應無締結和解契約之可能，否則和解契約與代物清償等直接使權利義務發生、變更或消滅之法律行為，將變得無法區別。 關於和解契約錯誤，同樣本於和解契約定紛止爭之本質，當事人就和解契約效力所及之範圍，不得再以約定與客觀真實相違背主張撤銷。因此，民法七百三十八條三款他方當事人資格或重要爭點錯誤，若參照外國法例並對照同條前二款，所謂和解錯誤毋寧係指作為和解的前者（和解基礎）。由於此一錯誤仍係意思形成階段之錯誤，故與民法八十八條之錯誤有別。然而，本於形成權之除斥期間係為法安定性而設之意旨，民法七百三十八條之撤銷權仍應適用民法九十條之除斥期間。

The purpose of a compromise and settlement contract is to terminate an existing dispute or prevent the occurrence of a future dispute between parties. In essence, it is used to eliminate vague legal relationships. It is allowed under the principle of autonomy of private law to apply in other legal relationships other than terminate an existing dispute. Therefore, Article 737 of Civil Law is principle based. In practice, it should be a misunderstanding to differentiate the legal effect between created reconciliation and certified reconciliation. By the same token, it would be unable to establish a compromise and settlement contract if the legal relation is not clear. Otherwise legal behavior that create, change or cease the rights and obligations, such as a settlement contract and a payment made in order to discharge a duty, would be indistinguishable. With regards to the mistake of a compromise and settlement contract, based on the same nature to terminate an existing dispute, the scope of the effectiveness of the contract should not be revoked when violating mutual agreement and objective reality. Therefore, the mistake mentioned in paragraph 3 under Article 738 that arises from one of the parties is acting under a mistake as to the qualification of the other party or as to the point in dispute, when refer to foreign cases and compared with the first and second paragraphs under the same article, the mistake is more of a basis for the compromise and settlement. This is a mistake in the concept forming phase. Therefore, it is different from the mistake referred in the article 88. However, the purpose of excluding period is for the stability of the law. The revocation right under Article 738 should apply to the excluding period as referred in Article 90.