论法定违约解除时的损害赔偿
发布时间：2018-12-28 14:01
【摘要】：我国《合同法》对合同解除时的损失如何进行补偿这一问题规定得较为笼统，，导致法学理论界对此争论不休，在实际的合同解除实务操作中也因标准不一而出现“同案不同判”的结果，损害了守约方利益、法律权威及司法公正。本文正是从合同解除的溯及力、合同解除与损害赔偿的并存、法定违约解除时的损害赔偿范围的确定这三个方面，对法定违约解除时的损害赔偿问题进行探究讨论，以便在法律规定不明的情况下理顺合同解除和损害赔偿的关系，更好地解决理论与实务中遇到的法定违约解除时的损害赔偿问题，保护合同之中守约当事人的合法权益并维护法律的公平、公正及权威。完善我国关于法定违约解除时的损害赔偿问题的研究及规范，不断进行探讨和实践，弥补我国目前立法上的疏漏及缺陷，才能维护法律的权威，使合同解除损害赔偿制度发挥更大的经济效益和社会效益。 本文除引言和结语部分外，正文部分共分为三章，第一章为合同解除的溯及力，第二章为合同解除与损害赔偿的并存关系，第三章为合同解除时损害赔偿的范围。第一章先从合同解除的基础理论着手，对合同解除的溯及力问题进行了研究，分别对关于合同解除的溯及力的“直接效果说”“间接效果说”“折衷说”及“清算关系说”这四种学说进行了探讨。对我国《合同法》对合同解除溯及力的规定做出分析，阐述了该规定阐释的区分说所引起的争论，并从立法价值和解决实际问题的角度提出自己的观点。第二章对合同解除与损害赔偿的并存问题进行分析，先对于目前理论界存在的不同学说进行简要的阐述，包括选择主义和并存主义，而并存主义又称为两立主义，其立法理由存在履行利益说和信赖利益说。然后结合我国的规定分别从权利保护、公平正义及实践检验的角度对合同解除和损害赔偿并存的价值进行了详细地阐述。第三章对法定违约解除时的损害赔偿范围进行分析，首先阐述了合同的利益构造问题，对比了英美法系及大陆法系的不同规定。然后对履行利益是否应包含进法定违约解除时的损害赔偿范围这一争论焦点进行阐述，并重点分析笔者认为履行利益损失应被包括在赔偿范围之内的理由，在履行利益应被赔偿的观点基础上阐述了应当对履行利益赔偿所进行的限制。
[Abstract]:The contract Law of our country prescribes generally how to compensate for the loss when the contract is terminated, which leads to the controversy in the field of legal theory. In the practical operation of the actual rescission of contract, the result of "different judgments in the same case" appears because of the different standards, which damages the interests of the parties to the contract, the legal authority and the judicial justice. From the retroactive effect of contract rescission, the coexistence of contract termination and damage compensation, and the determination of the scope of damage compensation at the time of legal breach of contract, this paper probes into the problem of compensation for damages at the time of legal breach of contract. In order to straighten out the relationship between the termination of the contract and the compensation for damages in the case of unclear provisions of the law, and better solve the problem of compensation for damages when the legal breach of contract is dissolved in theory and practice, Protect the lawful rights and interests of the parties to the contract and maintain the fairness, justice and authority of the law. In order to maintain the authority of the law, we should perfect the research and regulation on the issue of compensation for damages caused by legal breach of contract in our country, continue to discuss and practice, and make up for the omissions and defects in our current legislation, so as to maintain the authority of the law. Contract rescission damages system to play a greater economic and social benefits. In addition to the introduction and conclusion, the text is divided into three chapters: the first chapter is the retroactive effect of contract rescission, the second chapter is the coexistence of contract rescission and damage compensation, the third chapter is the scope of damage compensation when the contract is terminated. The first chapter starts with the basic theory of contract rescission and studies the retroactive effect of contract rescission. This paper probes into the four theories of "direct effect", "indirect effect" and "compromise" and "liquidation relationship" about the retroactive effect of contract termination. This paper makes an analysis of the retroactive effect of contract rescission in contract Law of China, expounds the controversy caused by the interpretation of the stipulation, and puts forward its own viewpoint from the angle of legislative value and solution of practical problems. The second chapter analyzes the coexistence of rescission of contract and compensation for damages. First of all, it briefly expounds the different theories existing in the field of theory at present, including selectivism and coexisting doctrine, which is also called two-stand doctrine. The legislative reasons are the theory of fulfilling interest and the theory of trust interest. Then the value of rescission of contract and compensation for damages are expounded in detail from the angle of protection of rights, fairness and justice, and practice test in combination with the provisions of our country. The third chapter analyzes the scope of damages when the statutory breach of contract is dissolved. Firstly, it expounds the interest structure of the contract, and compares the different provisions between the common law system and the civil law system. Then the focus of the debate on whether performance interests should be included in the scope of damages at the time of legal breach of contract is expounded, and the reasons why the loss of performance interests should be included in the scope of compensation are analyzed. On the basis of the viewpoint that the performance interest should be compensated, this paper expounds the limitation of the performance interest compensation.
【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】：2014
【分类号】：D923.6
本文编号：2394041
[Abstract]:The contract Law of our country prescribes generally how to compensate for the loss when the contract is terminated, which leads to the controversy in the field of legal theory. In the practical operation of the actual rescission of contract, the result of "different judgments in the same case" appears because of the different standards, which damages the interests of the parties to the contract, the legal authority and the judicial justice. From the retroactive effect of contract rescission, the coexistence of contract termination and damage compensation, and the determination of the scope of damage compensation at the time of legal breach of contract, this paper probes into the problem of compensation for damages at the time of legal breach of contract. In order to straighten out the relationship between the termination of the contract and the compensation for damages in the case of unclear provisions of the law, and better solve the problem of compensation for damages when the legal breach of contract is dissolved in theory and practice, Protect the lawful rights and interests of the parties to the contract and maintain the fairness, justice and authority of the law. In order to maintain the authority of the law, we should perfect the research and regulation on the issue of compensation for damages caused by legal breach of contract in our country, continue to discuss and practice, and make up for the omissions and defects in our current legislation, so as to maintain the authority of the law. Contract rescission damages system to play a greater economic and social benefits. In addition to the introduction and conclusion, the text is divided into three chapters: the first chapter is the retroactive effect of contract rescission, the second chapter is the coexistence of contract rescission and damage compensation, the third chapter is the scope of damage compensation when the contract is terminated. The first chapter starts with the basic theory of contract rescission and studies the retroactive effect of contract rescission. This paper probes into the four theories of "direct effect", "indirect effect" and "compromise" and "liquidation relationship" about the retroactive effect of contract termination. This paper makes an analysis of the retroactive effect of contract rescission in contract Law of China, expounds the controversy caused by the interpretation of the stipulation, and puts forward its own viewpoint from the angle of legislative value and solution of practical problems. The second chapter analyzes the coexistence of rescission of contract and compensation for damages. First of all, it briefly expounds the different theories existing in the field of theory at present, including selectivism and coexisting doctrine, which is also called two-stand doctrine. The legislative reasons are the theory of fulfilling interest and the theory of trust interest. Then the value of rescission of contract and compensation for damages are expounded in detail from the angle of protection of rights, fairness and justice, and practice test in combination with the provisions of our country. The third chapter analyzes the scope of damages when the statutory breach of contract is dissolved. Firstly, it expounds the interest structure of the contract, and compares the different provisions between the common law system and the civil law system. Then the focus of the debate on whether performance interests should be included in the scope of damages at the time of legal breach of contract is expounded, and the reasons why the loss of performance interests should be included in the scope of compensation are analyzed. On the basis of the viewpoint that the performance interest should be compensated, this paper expounds the limitation of the performance interest compensation.
【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】：2014
【分类号】：D923.6
【参考文献】
相关期刊论文 前10条
1 崔建远;吴光荣;;我国合同法上解除权的行使规则[J];法律适用;2009年11期
2 林宏坚;曾祥生;;论合同解除后的损害赔偿[J];法律适用;2010年09期
3 徐梦野;;合同解除后的损害赔偿问题[J];法制与经济(中旬刊);2011年07期
4 王亚明;;合同解除损害赔偿问题探讨[J];湖南工程学院学报(社会科学版);2006年04期
5 韩世远;根本违约论[J];吉林大学社会科学学报;1999年04期
6 何国强;;合同解除损害赔偿范围之比较研究[J];武汉交通职业学院学报;2012年02期
7 王长发;合同解除效力形态的价值选择研究[J];黑龙江省政法管理干部学院学报;2005年01期
8 梁彤;黄渝景;;合同解除与违约责任——从概念逻辑到司法逻辑[J];求索;2007年02期
9 蔡立东;论合同解除制度的重构[J];法制与社会发展;2001年05期
10 崔建远;解除权问题的疑问与释答(下篇)[J];政治与法律;2005年04期
本文编号：2394041
本文链接：https://www.wllwen.com/falvlunwen/hetongqiyue/2394041.html
