第三人侵害缔约关系所生精神损害赔偿责任研究
发布时间：2019-03-17 12:25
【摘要】：当事人双方之间为了缔结合同进行磋商,此为缔约阶段,缔约阶段是合同成立的必经阶段。当事人在缔约阶段存在的缔约关系受法律保护,我国合同法中设立了缔约过失责任,约束缔约双方在缔约过程中的行为,但是尚未对第三人侵害缔约关系的行为进行约束。法律是否应当要求第三人在缔约阶段实施的侵害缔约关系的行为承担责任?如果规定第三人对侵害缔约关系的行为承担责任,那么这一赔偿范围是否涵盖精神损害?我国法律尚未对第三人侵害缔约关系做出明确规定,也未对第三人侵害缔约关系所生精神损害赔偿责任作出规定。比较域外法,美国法律对第三人侵害缔约关系所生精神损害赔偿责任的规定较为健全,可以适当借鉴域外法的规定,促进我国法律制度的完善。本文对第三人侵害缔约关系所生精神损害赔偿责任进行研究,包括以下四个部分。第一部分为第三人侵害缔约关系的法理审视。该部分概述了第三人侵害缔约关系的基本概念,阐释了缔约关系应当受到法律保护的理论依据以及证明第三人实施的侵害缔约关系的行为属于侵权行为。第二部分为第三人侵害缔约关系所生精神损害赔偿的——一般认识。该部分概述了第三人侵害缔约关系与精神损害赔偿之间的关系,对侵害缔约关系所生精神损害进行赔偿的必要性进行论述。第三部分为第三人侵害缔约关系适用精神损害赔偿——美国的做法。该部分详细介了美国侵权法关于第三人侵害缔约关系所生精神损害赔偿责任的规定,主要以美国《侵权法重述》及案例为研究对象,从第三人侵害缔约关系所生精神损害赔偿责任的构成要件、举证责任、赔偿数额等方面进行叙述,然后对美国侵权法关于第三人侵害缔约关系所生精神损害赔偿责任的做法进行评价。第四部分为第三人侵害缔约关系所生精神损害赔偿在我国的适用。首先,对我国关于精神损害赔偿责任的法律规定做出了分析并阐述了我国学者对第三人侵害缔约关系所生精神损害赔偿责任的立场,笔者发现我国关于精神损害赔偿责任存在适用条件过宽、赔偿数额混乱、责任承担方式不合理等方面的缺陷。其次,通过第三部分分析美国侵权法中关于第三人侵害缔约关系所生精神损害赔偿责任中构成要件、精神损害的证明方式、责任承担方式等方面的有益成分,对我国关于侵害缔约关系所生精神损害赔偿责任的法律提出建议。文章最后对三人侵害缔约关系侵害缔约关系所生精神损害赔偿责任的意义进行肯定。限制第三人侵害缔约关系的行为,赋予受害人向第三人主张侵害缔约关系所生精神损害主张赔偿责任,有利于完善我国的侵权法律制度。
[Abstract]:The parties to enter into a contract to negotiate, this is the contracting stage, the contracting stage is the necessary stage of contract establishment. The contracting relations existing in the contracting stage of the parties are protected by law. The contract law of our country establishes the fault liability of contracting, which restricts the behavior of the contracting parties in the process of contracting, but has not yet restricted the third party's act of infringing on the contracting relationship. Should the law require a third party to be held liable for acts committed at the contracting stage that infringe on the contracting relationship? If third parties are required to be liable for acts that infringe on the contracting relationship, does this scope of compensation cover moral damage? The law of our country has not clearly stipulated the third party's infringement on the contracting relationship, nor has it stipulated the liability of the third party to compensate for the spiritual damage caused by the third party's infringement on the contracting relationship. Compared with the extraterritorial law, the provisions of American law on the liability for compensation for mental damage caused by the third party's infringement on the contracting relationship are relatively perfect, which can be used for reference to promote the perfection of the legal system of our country. This paper studies the liability for mental damage caused by the third party's infringement on the contracting relationship, including the following four parts. The first part is the legal examination of the third party's infringement on the contracting relationship. This part summarizes the basic concept of the third party's infringement on the contracting relationship, explains the theoretical basis that the contracting relationship should be protected by law, and proves that the third party's infringement on the contracting relationship is a tort. The second part is the compensation for the mental damage caused by the third party's infringement on the contracting relationship-general understanding. This part summarizes the relationship between the third party's infringement contracting relationship and the compensation for mental damage, and discusses the necessity of compensation for the mental damage caused by the infringing contracting relationship. The third part is the application of moral damage compensation to the third party's infringement of the contracting relationship-the United States practice. This part introduces in detail the provisions of the United States Tort Law on the liability of third parties for moral damage arising from the infringement of the Contracting relationship, mainly focusing on the restatement of Tort Law in the United States and the cases as the object of study. It is described from the aspects of the constituent elements, the burden of proof and the amount of compensation for the spiritual damage caused by the third party's infringement on the contracting relationship. Then the United States tort law on the third party infringes on the liability for mental damage caused by the evaluation. The fourth part is the application of the compensation for spiritual damage caused by the third party's infringement on the contracting relationship in our country. First of all, this paper analyzes the legal provisions of the liability for mental damage compensation in China and expounds the position of the scholars of our country on the liability of compensation for mental damage arising from the third party's infringement on the contracting relationship. The author finds that there are some defects in the liability of compensation for mental damage in China, such as too wide applicable conditions, confusion in the amount of compensation, unreasonable way of bearing responsibility and so on. Secondly, through the third part of the United States Tort Law on the third party infringement of the relationship between the spiritual damage caused by the constituent elements of the liability, the way of proof of mental damage, liability and other aspects of the beneficial elements, and so on. This paper puts forward some suggestions on the liability for mental damage caused by the infringement of the relationship between the contracting parties in our country. Finally, the article affirms the significance of the liability for mental damage caused by the infringement of the contracting relationship by the three persons. It is beneficial to perfect the tort legal system of our country by restricting the third party's act of infringing the contracting relationship and giving the victim the liability to claim compensation for the spiritual damage caused by the third party's infringement on the contracting relationship.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D913
，
本文编号：2442301
[Abstract]:The parties to enter into a contract to negotiate, this is the contracting stage, the contracting stage is the necessary stage of contract establishment. The contracting relations existing in the contracting stage of the parties are protected by law. The contract law of our country establishes the fault liability of contracting, which restricts the behavior of the contracting parties in the process of contracting, but has not yet restricted the third party's act of infringing on the contracting relationship. Should the law require a third party to be held liable for acts committed at the contracting stage that infringe on the contracting relationship? If third parties are required to be liable for acts that infringe on the contracting relationship, does this scope of compensation cover moral damage? The law of our country has not clearly stipulated the third party's infringement on the contracting relationship, nor has it stipulated the liability of the third party to compensate for the spiritual damage caused by the third party's infringement on the contracting relationship. Compared with the extraterritorial law, the provisions of American law on the liability for compensation for mental damage caused by the third party's infringement on the contracting relationship are relatively perfect, which can be used for reference to promote the perfection of the legal system of our country. This paper studies the liability for mental damage caused by the third party's infringement on the contracting relationship, including the following four parts. The first part is the legal examination of the third party's infringement on the contracting relationship. This part summarizes the basic concept of the third party's infringement on the contracting relationship, explains the theoretical basis that the contracting relationship should be protected by law, and proves that the third party's infringement on the contracting relationship is a tort. The second part is the compensation for the mental damage caused by the third party's infringement on the contracting relationship-general understanding. This part summarizes the relationship between the third party's infringement contracting relationship and the compensation for mental damage, and discusses the necessity of compensation for the mental damage caused by the infringing contracting relationship. The third part is the application of moral damage compensation to the third party's infringement of the contracting relationship-the United States practice. This part introduces in detail the provisions of the United States Tort Law on the liability of third parties for moral damage arising from the infringement of the Contracting relationship, mainly focusing on the restatement of Tort Law in the United States and the cases as the object of study. It is described from the aspects of the constituent elements, the burden of proof and the amount of compensation for the spiritual damage caused by the third party's infringement on the contracting relationship. Then the United States tort law on the third party infringes on the liability for mental damage caused by the evaluation. The fourth part is the application of the compensation for spiritual damage caused by the third party's infringement on the contracting relationship in our country. First of all, this paper analyzes the legal provisions of the liability for mental damage compensation in China and expounds the position of the scholars of our country on the liability of compensation for mental damage arising from the third party's infringement on the contracting relationship. The author finds that there are some defects in the liability of compensation for mental damage in China, such as too wide applicable conditions, confusion in the amount of compensation, unreasonable way of bearing responsibility and so on. Secondly, through the third part of the United States Tort Law on the third party infringement of the relationship between the spiritual damage caused by the constituent elements of the liability, the way of proof of mental damage, liability and other aspects of the beneficial elements, and so on. This paper puts forward some suggestions on the liability for mental damage caused by the infringement of the relationship between the contracting parties in our country. Finally, the article affirms the significance of the liability for mental damage caused by the infringement of the contracting relationship by the three persons. It is beneficial to perfect the tort legal system of our country by restricting the third party's act of infringing the contracting relationship and giving the victim the liability to claim compensation for the spiritual damage caused by the third party's infringement on the contracting relationship.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D913
，
本文编号：2442301
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