无名合同适用问题研究

发布时间：2018-07-27 19:03

【摘要】：无名合同是法律未明确规定的合同形态，也被称为非典型合同，与有名合同相对应。在法律适用问题上，无名合同与有名合同的法律适用规定不同，只能通过适用我国《合同法》总则的一般规定进行处理。这样，在具体司法实践中，随着无名合同类型的发展和新型合同的产生，无名合同法律适用存在的困难和争议将越来越多。合同法总则的规定给法官的自由裁量权提出了更高的要求，这给无名合同法律适用带来了挑战。本文针对无名合同法律适用问题展开阐述，通过案例引入当前无名合同法律适用的争议和困难，重点研究无名合同界定和分类，针对无名合同的不同分类和法律适用问题展开分析和研究。以期推进无名合同法律适用的可操作性，从而解决当前法律适用的困难，推动无名合同纠纷的合理解决，实现司法活动的法律效果与社会效果的统一。文章主题分为四个部分，具体如下：第一部分，通过典型无名合同案例的引入，对我国当前无名合同类型复杂化和适用中存在的问题进行分析。第二部分，从无名合同基本理论出发，首先考察和界定了无名合同的内涵，并对无名合同的理论分析做了研究，，同时提出无名合同应该分为纯粹无名合同、混合合同以及准混合合同，并对混合合同进行了再分类，认为合同联立并不属于无名合同范畴；第三部分，针对无名合同的基本理论和分类等问题，笔者认为对于无名合同的法律适用应该遵守统一的规则，并针对不同类型的合同举例分析了具体类型无名合同的法律适用。第四部分，对法官自由裁量权问题做了简单的分析，认为尽管法官自由裁量权在无名合同的解释和法律适用过程中发挥着重要作用，但也应该通过建立判例制度进行合理的限制。文章最后是结语，对文章的研究做了简要总结，并对研究的不足之处作了分析。
[Abstract]:Nameless contract is a kind of contract which is not clearly stipulated by law, and is also called atypical contract, corresponding to famous contract. As to the application of law, the law of nameless contract is different from that of famous contract, which can only be dealt with by applying the general provisions of contract Law of our country. In this way, with the development of nameless contract and the emergence of new contract, there will be more and more difficulties and disputes in the application of nameless contract law. The general rule of contract law puts forward higher request to judge's discretion, which brings challenge to the law application of nameless contract. This paper focuses on the definition and classification of nameless contracts by introducing the disputes and difficulties in the application of the law of nameless contracts through cases, and focusing on the definition and classification of nameless contracts. This paper analyzes and studies the different classification and legal application of unnamed contracts. The purpose of this paper is to promote the maneuverability of the legal application of nameless contracts, to solve the difficulties in the application of the law at present, to promote the rational resolution of disputes concerning nameless contracts, and to realize the unification of the legal effects and social effects of judicial activities. The theme of this paper is divided into four parts: the first part, through the introduction of the typical anonymous contract case, analyzes the complexity and the problems in the application of the current nameless contract in our country. In the second part, starting from the basic theory of nameless contract, the connotation of nameless contract is first investigated and defined, and the theoretical analysis of nameless contract is made. At the same time, it is proposed that nameless contract should be divided into pure nameless contract. The mixed contract and quasi-mixed contract are reclassified, and it is considered that the joint contract does not belong to the category of nameless contract. The third part, aiming at the basic theory and classification of nameless contract and so on, The author thinks that the application of law to nameless contract should follow the uniform rules, and analyzes the legal application of specific type of nameless contract with examples of different types of contract. In the fourth part, the author makes a brief analysis of the issue of the judge's discretion, and thinks that although the judge's discretion plays an important role in the interpretation of the nameless contract and the application of the law, However, reasonable restrictions should also be imposed through the establishment of a precedent system. At the end of the article, the conclusion is given, and the deficiency of the research is analyzed.
【学位授予单位】：沈阳师范大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6

【相似文献】