论强制缔约制度

发布时间：2018-06-13 14:12

本文选题：强制缔约 + 价值分析　；参考：《中国海洋大学》2013年硕士论文

【摘要】：契约自由一直都是合同法的基本原则,特别是在自由资本主义时期更是大行其道。但是随着资本主义垄断时期的到来,契约自由理论开始受到挑战。契约自由已经无法满足垄断资本主义经济的发展,越来越多的弊端逐渐浮现。契约自由追求效率但是忽略了公平正义,强制缔约制度作为矫正这一制度的措施受到青睐。但是纵观国内外法学界,有关强制缔约制度的研究并不完善。本文在现有资料的基础上对强制缔约制度进一步探析,以期为将来的立法、司法实践提供依据。本文除了引言和结语,共分三个部分。第一部分是关于强制缔约制度的价值分析。强制缔约制度在自由、正义和秩序之间发挥着重要的作用。强制缔约是对契约自由的修正,与契约自由相统一。强制缔约是实质正义在立法上的体现。强制缔约为立法由个人本位到社会本位的转变提供了契机。第二部分是关于强制缔约制度的适用分析。通过对国内外强制缔约适用范围的立法梳理,得出各国关于强制缔约的适用范围大同小异,但是主要都适用在邮政、运输、供水供电、医疗等公共服务领域或者垄断行业领域。为了避免强制缔约适用上的麻烦,必须明确强制缔约适用的条件。强制缔约应该满足三个条件：一是强制缔约义务的存在须有义务来源的基础,这种基础既包括广义上的法律,也包括法律原则。二是属于公共服务行业或者自然垄断行业,一般的服务行业如餐饮、浴室不适用强制缔约制度。三是缔约请求须合理,否则允许强制缔约义务人享有一定的抗辩权。第三部分是违反强制缔约义务的法律分析。理论界关于违反强制缔约所要承担责任性质主要有三种学说：缔约过失责任说、侵权责任说、独立责任说。通过分析以上三种学说的合理性及其缺陷,提出自己关于违反强制缔约义务所要承担的责任为一种特殊的缔约过失责任的结论。违反强制缔约义务要承担的民事责任形式包括赔礼道歉、强制缔约和损害赔偿。每一种方式都有其适用的特点,这三种方式可以单独适用,也可以合并适用。
[Abstract]:Freedom of contract has always been the basic principle of contract law, especially in the period of liberal capitalism. However, with the arrival of capitalist monopoly period, the theory of freedom of contract began to be challenged. Freedom of contract has been unable to meet the development of monopoly capitalist economy, and more malpractices have emerged. The freedom of contract pursues efficiency but neglects fairness and justice, so the compulsory contracting system is favored as a measure to rectify this system. But throughout the domestic and foreign legal circles, the research on compulsory contracting system is not perfect. Based on the existing data, this paper further analyzes the system of compulsory contracting in order to provide the basis for future legislation and judicial practice. In addition to the introduction and conclusion, this article is divided into three parts. The first part is about the value analysis of the compulsory contracting system. Compulsory contracting system plays an important role between freedom, justice and order. Compulsory contracting is an amendment to the freedom of contract, which is unified with the freedom of contract. Compulsory contracting is the embodiment of substantive justice in legislation. Compulsory contracting provides an opportunity for the change of legislation from individual standard to social standard. The second part is about the application analysis of the compulsory contracting system. By combing the applicable scope of compulsory contracting at home and abroad, the author draws a conclusion that the scope of application of compulsory contracting is similar to that of other countries, but it is mainly applicable in the field of public service, such as postal service, transportation, water supply and power supply, medical treatment and so on. In order to avoid the trouble of compulsory contracting application, it is necessary to define the conditions of compulsory contracting application. Compulsory contracting should satisfy three conditions: first, the existence of compulsory contracting obligation must have the basis of the source of the obligation, which includes both the broad sense of law and the principle of law. Second, it belongs to public service industry or natural monopoly industry, general service industry such as catering, bathroom is not applicable to compulsory contracting system. Third, the contracting request must be reasonable, otherwise the compulsory contracting obligor has certain defense right. The third part is the legal analysis of the violation of compulsory contracting obligations. There are three kinds of theories about the nature of liability for breach of compulsory contracting: fault liability in contracting, tort liability and independent liability. By analyzing the rationality and defects of the above three theories, the author puts forward his own conclusion that the liability for breach of compulsory contracting obligation is a special liability for fault in contracting. The forms of civil liability for breach of compulsory contracting obligation include apology, compulsory contracting and damages. Each method has its own characteristics, the three methods can be applied individually or in combination.
【学位授予单位】：中国海洋大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D913

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