第三人妨碍合同缔结法律问题研究

发布时间：2018-10-11 18:09

【摘要】：随着商品经济的发展,合同成为财产流转最重要的形式。第三人妨碍合同缔结行为时有发生,加强对合同订立过程中双方当事人缔约利益的法律保护已成为现代经济发展的内在要求。受“合同相对性规则”的限制,《合同法》已经无法对第三人妨碍合同缔结的行为进行调整,而《反不正当竞争法》往往只是对不法行为人进行处罚,缔约主体的损害很难得到补偿,这对于缔约人来说是非常不公平的。因此,明确第三人妨碍合同缔结行为应受侵权法调整性以及其侵权责任构成,有利于完善我国的市场经济体制、规范市场竞争秩序。对于第三人妨碍合同缔结行为,理论界在很多方面存在争议。第三人妨碍合同缔结法律问题已引起国外法学界的足够重视,利用侵权法上的制度对这一问题进行调整也已成为许多国家立法上的共识。然而这一问题在我国法学理论界并未得到足够的关注,对该问题的研究也不多见。首先,第三人妨碍合同缔结有哪些行为样态?缔约当事人在合同缔结阶段享有何种权利或利益?其次,对该种权利或利益如何进行保护?针对上述问题,本文从以下几个方面进行了论述。首先,本文通过对第三人妨碍合同缔结行为进行定义,界定了其行为样态。其次,本文对第三人妨碍合同缔结行为侵害的利益进行了分析,得出这种要约人与受要约人同时遭受的损失属于纯经济利益损失,第三人所侵犯的利益属于缔约利益。再次,本文通过从价值衡量的角度对缔约利益进行分析,得出缔约利益属于《侵权责任法》上“法律所保护的利益”,因而应当受到法律的保护。而可适用的法条只有两个：一个是《侵权责任法》第2条。这一条是概括了全部侵权行为的具有最高程度的概括性条款,但由于没有规定侵权责任的构成要件,因而不能直接作为裁判依据。另一个是《侵权责任法》第6条第1款,虽然规定了归责原则,可以作为裁判依据,但该款的保护范围已经宽到不能再宽,从字面理解,并没有将绝对权和其他利益区分丌并给予不同程度的保护,而是同等保护。这是非常可怕的——因为权益保护与行为自由之间必须保持适当的平衡,侵权法对权益的保护范围和保护程度绝非越高越好。由于《侵权责任法》尚未有权威的司法解释出台,所以对适用该条调整第三人妨碍合同缔结行为进行解释上的限制很有必要。因而最后,本文通过限缩解释的方法,通过对第三人妨碍合同缔结侵权责任构成要件的特殊限制来判定第三人的行为是否构成妨碍合同缔结的侵权行为。
[Abstract]:With the development of commodity economy, contract becomes the most important form of property circulation. The third party obstructs the conclusion of the contract from time to time, and strengthening the legal protection of the contracting interests of both parties in the process of concluding the contract has become the inherent requirement of the modern economic development. Limited by the relative rules of contract, the contract Law has been unable to adjust the behavior of the third party obstructing the conclusion of the contract, while the Anti-unfair Competition Law often only punishes the wrongdoer. It is very unfair for the contracting parties to get compensation for the damage caused by the contracting parties. Therefore, it is helpful to perfect the market economy system and standardize the order of market competition to make it clear that the third party should be regulated by the tort law and its tort liability in order to make sure that the third party hinders the conclusion of the contract. The third party hinders the conclusion of the contract, there are disputes in many aspects in the theoretical circle. The legal problem of the third party hindering the conclusion of a contract has been paid enough attention by the legal circles of foreign countries, and it has become a common understanding in many countries to use the system of tort law to adjust the problem. However, this problem has not been paid enough attention to in the field of legal theory in our country, and the research on it is rare. First, what is the behavior of the third party hindering the conclusion of the contract? What rights or interests do the contracting parties enjoy at the conclusion of the contract? Secondly, how can this right or interest be protected? In view of the above problems, this article has carried on the discussion from the following several aspects. Firstly, this paper defines the behavior of the third party hindering the conclusion of contract. Secondly, this paper analyzes the interests of the third party in hindering the conclusion of the contract, and concludes that the losses suffered by the offeror and the offeree at the same time are pure economic interests losses, and the interests infringed by the third party belong to the contracting interests. Thirdly, through the analysis of contracting interests from the angle of value measurement, this paper concludes that contracting interests belong to the "interests protected by law" in Tort liability Law, and should be protected by law. There are only two applicable articles: one is Section 2 of the Tort liability Act. This article is a summary of all the tort acts with the highest degree of generality, but because there are no provisions on the constitutive elements of tort liability, it can not be used as a direct basis for adjudication. The other is section 6, paragraph 1, of the Tort liability Act, which provides for the principle of imputation and may be used as a basis for adjudication, but the scope of protection in this section is too broad to be extended literally, It does not distinguish between absolute rights and other interests and gives different degrees of protection, but equal protection. This is terrible because the proper balance must be struck between the protection of rights and the freedom of conduct, and the scope and extent of protection of rights and interests in tort law is by no means as high as possible. Since the Tort liability Law has not yet had an authoritative judicial interpretation, it is necessary to explain the restrictions on the application of this article to adjust the third party's behavior of hindering the conclusion of a contract. Finally, through the method of constriction interpretation, this paper determines whether the behavior of the third party constitutes an infringement that hinders the conclusion of the contract through the special limitation of the constitutive requirements of the third party hindering the conclusion of the contract.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.6;D922.294

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