中标通知书效力研究

发布时间：2018-03-22 14:44

本文选题：中标通知书　切入点：法律效力　出处：《西南政法大学》2015年硕士论文　论文类型：学位论文

【摘要】：在我国招标投标制度中,中标通知书发出后招标人与中标人之间存在何种法律关系;中标通知书对招投标双方是否具有约束力;中标通知书发出后当事人的悔标行为应当承担何种法律责任等这一系列问题并未得到解答。在我国的招标投标活动中,对中标通知书的法律性质及效力的认识莫衷一是,尤其是在司法实践中对中标通知书性质的判断也各有不同。许多招标投标活动中,大量出现在招标方发出中标通知书后招标方或投标方悔标的情形。而各法院在实践中由于对中标通知书的法律性质及效力的认识不同而造成对招标投标合同是否成立的认定不同,进而对悔标方应当承担合同成立前的缔约过失责任还是应当承担违约责任这一问题也无统一的定论。由于实践中缔约过失责任赔偿与违约责任赔偿的巨大差别导致当事人获得的法律救济利益的悬殊,因此有必要对中标通知书的法律性质进行深入的分析,并结合招标投标合同的特殊性,以界定中标通知书的效力。而在理论界中对中标通知书的法律性质及效力进行的界定并具有广泛影响力的学说为承诺说与预约合同说。承诺说是基于合同法理论体系在招标投标制度中的运用而提出的,其认为中标通知书应视为招标投标合同订立中的承诺,中标通知书的生效则导致招投标合同的成立。但是,笔者认为由于承诺说学说体系与我国合同法规定存在矛盾。《招标投标法》第46条规定了招标投标合同的合同签订形式,即书面合同。同时依照我国合同法规定,以合同书形式订立的合同自其当事人签字或盖章时成立,自然与承诺说之结论相悖。同时,中标通知书之生效原则也不同于我国合同法中承诺所采之生效原则。承诺说与民法理论及法律规定的各种矛盾使其无法通过对理论进行修补来消除。而在承诺说之基础上提出的招标公告区别说因存在理论建构上的谬误而缺乏实际意义。因此有学者引入了预约合同概念以解决中标通知书的法律效力问题,进而确定中标通知书发出后招投标当事人悔标的法律责任。预约合同说将招标投标活动进行两阶段划分,并认为第一阶段实际为预约合同的成立过程,中标通知书的发出仅仅意味着预约合同的成立而非招标投标合同的成立。但是,由于预约合同在我国缺乏明确的法律规定,使其学说不够完善,尤其是责任类型与救济方式的不完善。笔者在预约合同说的基础上,对预约合同说进行重新构建,认为中标通知书的法律效力实为预约合同的承诺,悔标当事人则应承担预约合同违约责任而非缔约过失责任。预约合同违约责任这一责任类型使守约方享有多种救济方式,以更好的保护其合法权益,同时也有利于招标投标活动目的的实现。
[Abstract]:In the bidding system of our country, what kind of legal relationship exists between the tenderer and the successful bidder after the tender notice is issued; The questions of what legal liability the parties should bear after the tender notice has been issued have not been answered. In the bidding activities in China, there is no consensus on the legal nature and effectiveness of the tender notice. In particular, in judicial practice, the nature of the tender notice is judged differently. In many tendering and bidding activities, There is a large number of cases in which the tenderer or the tenderer repents after the tender notice has been issued. In practice, the courts have different understanding of the legal nature and effectiveness of the tender notice and have different views on whether or not the tender contract is a tender contract. The confirmation of the establishment is different, Furthermore, there is no uniform conclusion on whether the contrite party should bear the contractual negligence liability before the establishment of the contract or the liability for breach of contract. Due to the huge difference between the compensation for contractual negligence liability and the compensation for breach of contract liability in practice. The disparity in the benefits of legal relief obtained by the parties, Therefore, it is necessary to conduct a thorough analysis of the legal nature of the tender winning notice, and to combine the particularity of the bidding contract, The theory that defines the legal nature and effect of the bid winning notice in the theoretical circle and has wide influence is the theory of commitment and contract appointment. The theory of commitment is based on the theory of contract law. The application of the system in the bidding system, In its opinion, the tender winning notice shall be regarded as an undertaking in the conclusion of the tender and bid contract, and the entry into force of the bid winning notice will lead to the establishment of the tender contract. However, The author thinks that because of the contradiction between the theory system of acceptance and the stipulation of contract law of our country, Article 46 of the Law of bidding and bidding stipulates the form of contract signing for contract of tender and bidding, that is, written contract, at the same time, according to the stipulations of contract law of our country, The conclusion of a contract in the form of a contract signed or sealed by the parties is naturally contrary to the conclusion of the statement of commitment. At the same time, The principle of effectiveness of bid winning notice is also different from that adopted in the contract law of our country. The contradiction between the theory of commitment and the theory of civil law and the provisions of law make it impossible to be eliminated by mending the theory. Therefore, some scholars have introduced the concept of appointment contract to solve the problem of the legal effect of the bidding notice. After the tender notice is issued, the parties concerned regret the legal liability of the subject matter. According to the appointment contract, the bidding activities are divided into two stages, and the first stage is actually the establishment process of the reservation contract. The issuance of the notice of winning bid only means the establishment of the contract of appointment rather than the establishment of the contract of tender and bid. However, due to the lack of clear legal provisions in our country, the theory of the contract is not perfect enough. In particular, the types of liability and the way of relief are not perfect. Based on the theory of appointment contract, the author reconstructs the theory of appointment contract, and thinks that the legal effect of the notice of winning bid is the promise of the contract of appointment. The parties who regret the contract should bear the liability for breach of contract instead of the liability for fault in concluding the contract. The type of liability for contract breach of contract makes the parties to the contract enjoy a variety of remedies in order to better protect their legitimate rights and interests. At the same time, it is also conducive to the realization of the purpose of bidding activities.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.6;D922.297

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