买卖合同标的物风险负担研究

发布时间：2018-10-26 16:07

【摘要】：风险无处不在,市场交易更是如此。买卖合同标的物的风险是指在合同订立后由于不可归责于双方当事人得事由从而致使标的物毁损灭失的一种不利状态,其对双方当事人具有十分重要的意义,直接关系到双方当事人合同利益的实现,因此,对标的物风险负担的研究就显得尤为重要,各国民法和国际公约、国际惯例都对此进行了规范。但是,我国理论界对风险负担的立法选择和《合同法》规定的理解存在较大争议。因此,有必要对买卖合同标的物的风险负担进行深入研究。在风险负担理论层面,有合同成立说、所有权说和交付说三种学说。合同成立说在充分尊重当事人意愿的基础上督促当事人及时履行合同,但是它没有区分合同成立和合同生效,而且对买受人保护不足,目前已被大多数国家所摒弃。所有权主义虽有所进步,但仍有很大弊端。各国对所有权变动界定不同,这在国际贸易中很难准确把握；而且在出卖人无权处分时,基于所有权主义,将无人承担风险。交付主义是指标的物风险随交付而转移,该主张有效解决了其他主张的弊端,成为大多数国家普遍接受的理论主张,但其也存在一定不足之处。我国立法采纳交付主义作为一般原则,除此之外,《合同法》还对一些比较特殊的买卖作了专门规定,如涉及运输的买卖,路货买卖,远程买卖等。我国《合同法》对标的物风险负担的规定还存在一些不足之处,本文根据国际公约、国际惯例和其他国家先进立法理论,在文中穿插了对《合同法》相关规定的评析和建议,期待对理论和实践能起到一定的促进作用。
[Abstract]:Risk is everywhere, especially market trading. The risk of buying and selling the subject matter of the contract refers to a kind of unfavorable state which can't be attributed to the parties after the conclusion of the contract and thus causes the subject matter to be destroyed and lost, which is of great significance to both parties. It is directly related to the realization of the contract interests of both parties. Therefore, the research on the risk burden of the subject-matter is particularly important, which is regulated by the civil law, international conventions and international conventions of various countries. However, the legislative choice of risk burden and the understanding of contract law in our country are controversial. Therefore, it is necessary to carry out in-depth study on the risk burden of the subject matter of the contract of sale and purchase. In the theory of risk burden, there are three theories: contract formation theory, ownership theory and delivery theory. The theory of contract formation urges the parties to perform the contract in time on the basis of fully respecting the wishes of the parties, but it does not distinguish between the formation of the contract and the effectiveness of the contract, and the buyer is not protected enough, which has been abandoned by most countries at present. Although there has been some progress in ownership, there are still many drawbacks. Different countries have different definitions of ownership change, which is difficult to accurately grasp in international trade, and when the seller has no right to dispose, there will be no one to bear the risk based on the ownership principle. Delivery doctrine refers to the transfer of the risk of the subject matter with delivery, which effectively solves the drawbacks of other claims and becomes a generally accepted theoretical proposition in most countries, but it also has some shortcomings. The law of contract of our country adopts the principle of delivery as a general principle. In addition, the contract Law also makes special provisions on some relatively special transactions, such as the sale of goods involving transportation, the sale of goods by road, the sale of long-distance goods, and so on. According to international conventions, international conventions and advanced legislative theories of other countries, this paper introduces some comments and suggestions on the relevant provisions of contract Law. Expect to play a certain role in promoting theory and practice.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6

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