浅析试用买卖合同

发布时间：2018-06-13 04:11

本文选题：试用买卖 + 试验买卖　；参考：《中国社会科学院研究生院》2012年硕士论文

【摘要】：试用买卖作为对新型产品的最佳促销模式在市场交易过程当中盛行，但由于我国合同法对试用买卖合同制度规定得相对简单和笼统，尚存很多法律未加规定但实践中又常常涉及的问题和争议难以解决，理论界对此存在着很多的争议，商家和消费者在交易过程中也不可避免地面临着种种风险，本文拟通过对试用买卖合同中存在争议之处进行梳理和分析探讨，力求通过分析探讨得出问题的结论，提出解决问题的方法和完善试用买卖合同制度的合理化建议，以促进试用买卖合同制度的进一步完善和健全。本文主要分为以下三个部分。第一部分：试用买卖合同概述。这一部分主要是对试用买卖合同的概括性介绍，包括对试用买卖合同概念、特征和试用买卖合同性质的介绍，在试用买卖合同的性质认定方面我国合同法未予规定，一向存在争议，文中肯定试用买卖合同为附停止条件的合同并对此进行了论证。接下来列举了其他几个国家对试用买卖合同的规定，并对其进行了简单的分析，最后介绍了我国合同法关于试用买卖合同的规定并概括其特点。第二部分：试用买卖合同有待明确的几个问题。该部分主要针对试用买卖合同学者争论最多也是实践中发生纠纷最多的几个问题进行分析论证，如买受人对试用标的物的认可形式及合同生效时间点；试用期间、试用费用及试用方法应如何确定；试用买卖中标的物的风险负担；试用买卖中的瑕疵担保责任以及试用买卖中标的物致人损害的责任形式，对以上这些问题的分析有助于加深对试用买卖合同制度的了解，明确问题和纠纷出现最多的症结所在，而通过论证得出的结论则有助于解决实践中试用买卖合同所面临的诸多争议。第三部分：我国在试用买卖合同方面需完善的地方。这一部分主要针对我国合同法对试用买卖合同规定上存在的不足以及前面论述的实践中经常出现的矛盾和纠纷，提出自己的完善建议。主要从立法完善、司法完善、市场规范三个角度提出自己的见解，市场规范方面又细分为商家、消费者以及市场自身调整完善等三个方面。随着试用买卖交易的广泛被应用到各个领域，我国合同法也十分有必要对试用买卖合同制度进行完善和健全，以适应社会经济发展需要、引导试用买卖交易向着健康有序的方向发展。
[Abstract]:As the best promotion mode for new products, trial sale is prevalent in the course of market transaction. However, because of the relatively simple and general stipulation of the trial sale contract system in China's contract law, There are still many problems and disputes which are often involved in practice, which are not regulated by many laws. There are many disputes in the theoretical circle, and businesses and consumers are inevitably faced with various risks in the course of transaction. In this paper, by combing and analyzing the disputes in the trial sale contract, the author tries his best to draw the conclusion of the problem, to put forward the method to solve the problem and to perfect the reasonable suggestion of the trial sale contract system. In order to promote the trial sale contract system further perfect and perfect. This article is divided into the following three parts. Part one: introduction of trial sale contract. This part is mainly about the general introduction of the trial sale contract, including the concept, characteristics and nature of the trial sale contract, which is not stipulated in the contract law of our country with regard to the determination of the nature of the trial sale contract. There has always been a dispute, this article affirms the trial sale contract as the contract with the conditions of suspension and demonstrates this. Then it lists the provisions of the trial sale contract in several other countries, and makes a simple analysis of it. Finally, it introduces the provisions of the contract law of our country about the trial sale contract and generalizes its characteristics. The second part: the trial sale contract needs to be clear several questions. This part is mainly aimed at the most controversial and most controversial issues in practice, such as the buyer's approval of the trial subject matter and the time point when the contract will take effect; during the trial period, How to determine the trial expenses and the trial method; the risk burden of the subject matter in the trial sale; the liability for the defect guarantee in the trial sale; and the form of liability for damage caused by the subject matter in the trial sale, The analysis of these problems will help to deepen the understanding of the system of trial sale and purchase contracts, and to clarify where the most serious problems and disputes arise. The conclusion through demonstration is helpful to solve many disputes that the trial sale contract faces in practice. The third part: the place that our country needs to perfect in trial sale contract. This part mainly aims at our country contract law to the trial sale contract stipulation existence insufficiency as well as the previous elaboration in the practice often appears the contradiction and the dispute, proposed own consummation proposal. Mainly from the legislative perfection, the judicial perfection, the market norm three angle puts forward own opinion, the market standard aspect subdivides into the merchant, the consumer and the market oneself adjustment consummation and so on three aspects. With the wide application of trial sale and sale transaction, it is necessary to perfect and perfect the system of trial sale contract in our country, in order to meet the needs of social and economic development. Guide trial trading in the direction of healthy and orderly development.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923

【参考文献】