第三人欺诈、胁迫而订立的合同法律问题研究
发布时间：2018-12-30 10:39
【摘要】：我国关于第三人欺诈、胁迫而订立的合同,经历了法律没有规定到立法明确规定的历史进程。在《民法总则》通过之前,国内理论界借鉴域外立法的规定,对第三人欺诈、胁迫而订立的合同效力进行了深入研究。学者们主要分为两种观点:第一种观点主张采用“区分模式”,即区分欺诈、胁迫情形,在合同效力问题上适用不同的救济标准;第二种观点主张采用“统一模式”,即不区分欺诈、胁迫情形,在合同效力问题上适用统一的救济标准。由于当时我国法律对因第三人欺诈、胁迫而订立的合同效力问题没有明确的规定,导致司法实践中处理和解决此类合同纠纷时遇到了很多困境,2017年3月15日审议通过的《中华人民共和国民法总则》,为解决第三人欺诈、胁迫合同效力问题提供了依据。我国《民法总则》采用了“区分模式”,选择这种模式主要是从第三人欺诈与第三人胁迫两种行为的社会危害性程度不同去考虑的,域外很多国家也基于两种行为的社会危害性程度不同而采用了“区分模式”。依据《民法总则》规定的精神,针对我国后续《合同法》关于第三人欺诈、胁迫而订立的合同法律救济制度的完善,可以从以下两个方面着手:一方面明确第三人的范围,欺诈、胁迫的构成要件。明确合同相对人的法定代表人、法定代理人、委托代理人、一方为辅助缔约而参与缔约行为的人、有限责任公司的股东、合同当事人的子公司、分公司、内设机构、与合同一方当事人形成紧密经济合作关系和利益分配关系的人以及与合同当事人一方恶意串通的人不属于第三人;关于如何认定欺诈、胁迫,可依据最高人民法院《关于贯彻执行中华人民共和国民法通则若干问题的意见(试行)》第68条和第69条的规定确定;而第三人欺诈、胁迫的构成要件,包括了第三人有欺诈、胁迫故意,实施了欺诈、胁迫行为,受害人基于错误认识或恐惧心理为意思表示、被害人的意思表示与错误认识或胁迫行为之间有因果关系。另一方面完善第三人欺诈、胁迫而订立合同的具体救济制度。关于撤销权制度的完善,赋予受害方在合同尚未实际履行时撤销合同的权利、以及善意相对人提出撤销合同的权利;针对举证责任制度的完善,规定合同相对人就是否知道或应当知道的事实负有举证责任;规定受害人对自行不能调取的证据可申请人民法院或仲裁机构调取证据;在当事人责任分配制度完善方面,规定合同双方当事人根据过错互负损害赔偿责任;建立第三人侵害债权责任制度,规定合同相对方为善意时受害方可要求第三人承担侵权损害赔偿责任,受害方和相对方均无过错时,都可以要求第三人承担侵权损害赔偿责任。
[Abstract]:The contract concluded by third party fraud and coercion in our country has gone through the historical process from the law to the legislation. Before the adoption of the General principles of Civil Law, the domestic theorists studied the validity of contracts concluded by third party fraud and coercion by referring to the provisions of extraterritorial legislation. Scholars mainly divided into two points of view: the first point of view is to adopt a "distinction model", that is, to distinguish between fraud and coercion, and apply different relief standards on the issue of contract effectiveness; The second point of view is to adopt the "unified model", that is, to apply the uniform relief standard in the issue of contract validity without distinguishing between fraud and coercion. At that time, there was no clear stipulation on the validity of the contract concluded by the third party fraud and coercion in our country's law, which led to many difficulties in dealing with and resolving this kind of contract dispute in judicial practice. The General principles of Civil Law of the people's Republic of China, which was deliberated and adopted on March 15, 2017, provide a basis for solving the problem of fraud and coercion of third parties. The General principles of Civil Law in China adopt the "distinguishing model", which is mainly considered from the different degree of social harmfulness between the third party fraud and the third party coercion. Many countries in foreign countries also adopt the "distinguishing mode" based on the different degree of social harmfulness of the two acts. In accordance with the spirit of the General provisions of Civil Law, and in view of the perfection of the legal relief system of the contract concluded by third party fraud and coercion in China's contract Law, we can proceed from the following two aspects: on the one hand, we should clarify the scope of the third party. The constituent elements of fraud and coercion. Defining the legal representative, legal agent, entrusting agent of the counterpart of the contract, the person who participates in the contracting act of one party to assist in the contracting, the shareholders of the limited liability company, the subsidiary company of the contract party, the branch company, the internal organization, A person who forms a close relationship of economic cooperation and distribution of interests with one of the parties to the contract and a person who is maliciously colluded with one of the parties to the contract does not belong to the third party; As to how to identify fraud and coercion, it may be determined according to the provisions of articles 68 and 69 of the Supreme people's Court concerning the implementation of certain issues concerning the implementation of the General principles of Civil Law of the people's Republic of China (on a trial basis); The constituent elements of the third person's fraud and coercion include the third person's fraud, the coercion intention, the execution of the fraud, the coercing act, and the victim's intention expressed on the basis of false cognition or fear. There is a causal relationship between the expression of the victim's intention and the wrong cognition or coercion. On the other hand, improve the third-party fraud, coercion and the conclusion of the specific relief system. On the perfection of the system of rescission right, the injured party is given the right to cancel the contract when the contract has not been actually performed, and the right of the bona fide counterpart to withdraw the contract; In view of the perfection of the system of burden of proof, it is stipulated that the relative party of the contract shall bear the burden of proof as to whether or not he knows or should know the facts, and that the victim may apply to the people's court or the arbitration institution to obtain the evidence which cannot be obtained by himself; In the aspect of perfecting the system of party liability distribution, it is stipulated that both parties to a contract shall bear the liability for damages according to their fault. In order to establish the liability system of the third party's infringement of creditor's rights, the injured party may ask the third party to bear the liability for tort damage when the contract relative party is in good faith, and both the injured party and the opposite party can require the third party to bear the liability for tort damage compensation when there is no fault.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6
本文编号：2395467
[Abstract]:The contract concluded by third party fraud and coercion in our country has gone through the historical process from the law to the legislation. Before the adoption of the General principles of Civil Law, the domestic theorists studied the validity of contracts concluded by third party fraud and coercion by referring to the provisions of extraterritorial legislation. Scholars mainly divided into two points of view: the first point of view is to adopt a "distinction model", that is, to distinguish between fraud and coercion, and apply different relief standards on the issue of contract effectiveness; The second point of view is to adopt the "unified model", that is, to apply the uniform relief standard in the issue of contract validity without distinguishing between fraud and coercion. At that time, there was no clear stipulation on the validity of the contract concluded by the third party fraud and coercion in our country's law, which led to many difficulties in dealing with and resolving this kind of contract dispute in judicial practice. The General principles of Civil Law of the people's Republic of China, which was deliberated and adopted on March 15, 2017, provide a basis for solving the problem of fraud and coercion of third parties. The General principles of Civil Law in China adopt the "distinguishing model", which is mainly considered from the different degree of social harmfulness between the third party fraud and the third party coercion. Many countries in foreign countries also adopt the "distinguishing mode" based on the different degree of social harmfulness of the two acts. In accordance with the spirit of the General provisions of Civil Law, and in view of the perfection of the legal relief system of the contract concluded by third party fraud and coercion in China's contract Law, we can proceed from the following two aspects: on the one hand, we should clarify the scope of the third party. The constituent elements of fraud and coercion. Defining the legal representative, legal agent, entrusting agent of the counterpart of the contract, the person who participates in the contracting act of one party to assist in the contracting, the shareholders of the limited liability company, the subsidiary company of the contract party, the branch company, the internal organization, A person who forms a close relationship of economic cooperation and distribution of interests with one of the parties to the contract and a person who is maliciously colluded with one of the parties to the contract does not belong to the third party; As to how to identify fraud and coercion, it may be determined according to the provisions of articles 68 and 69 of the Supreme people's Court concerning the implementation of certain issues concerning the implementation of the General principles of Civil Law of the people's Republic of China (on a trial basis); The constituent elements of the third person's fraud and coercion include the third person's fraud, the coercion intention, the execution of the fraud, the coercing act, and the victim's intention expressed on the basis of false cognition or fear. There is a causal relationship between the expression of the victim's intention and the wrong cognition or coercion. On the other hand, improve the third-party fraud, coercion and the conclusion of the specific relief system. On the perfection of the system of rescission right, the injured party is given the right to cancel the contract when the contract has not been actually performed, and the right of the bona fide counterpart to withdraw the contract; In view of the perfection of the system of burden of proof, it is stipulated that the relative party of the contract shall bear the burden of proof as to whether or not he knows or should know the facts, and that the victim may apply to the people's court or the arbitration institution to obtain the evidence which cannot be obtained by himself; In the aspect of perfecting the system of party liability distribution, it is stipulated that both parties to a contract shall bear the liability for damages according to their fault. In order to establish the liability system of the third party's infringement of creditor's rights, the injured party may ask the third party to bear the liability for tort damage when the contract relative party is in good faith, and both the injured party and the opposite party can require the third party to bear the liability for tort damage compensation when there is no fault.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6
【参考文献】
相关期刊论文 前4条
1 易军;;民法公平原则新诠[J];法学家;2012年04期
2 冉克平;;论因第三人欺诈或胁迫而订立合同的效力[J];法学论坛;2012年04期
3 薛军;;第三人欺诈与第三人胁迫[J];法学研究;2011年01期
4 罗昆;;合同效力瑕疵制度中的类型思维及其问题[J];法学评论;2010年06期
相关硕士学位论文 前5条
1 刘媛媛;论民事欺诈行为[D];大连海事大学;2014年
2 罗婷婷;英美法系中的经济胁迫制度适用相关问题分析[D];西南财经大学;2014年
3 焦南凡;欺诈的法律控制[D];华中师范大学;2012年
4 金晓丽;意思表示瑕疵类型研究[D];河南大学;2010年
5 焦文重;合同民事欺诈若干问题的研究[D];郑州大学;2004年
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