违约归责原则比较研究
发布时间：2019-04-02 02:25
【摘要】： 违约归责原则,是指在进行违约行为所致事实后果的归属判断时应当遵循的原则和基本标准。不同的归责原则体现了不同的价值判断,决定了相应的责任构成要件的形成,对违约责任制度起着决定性作用。违约归责原则的立法选择十几年来一直是我国合同法学界讨论的热点,论者的观点可以划分为三类:第一类,主张英美法上的严格责任为最优选择;第二类,主张大陆法上的过错责任原则为最优选择;第三类,认为两大法系的归责原则就其实质而言,是一致的。本文赞同第三种观点,并尝试对此进行有力充分的论证。 本文的结构和研究方法是: 第一章:违约归责原则总论。严谨的概念是任何科学探讨的基础和前提。本章的目的即在于给出有关违约归责原则、免责事由、过错责任原则、过错推定、严格责任原则、无过错责任原则等诸概念的内涵与外延的清晰界限,并以这些概念作为支点和思维工具,为全文体系的构建奠定基础。此外,对一些关键概念间的联系也将进行必要的交待。 第二章:具体立法例分析。违约责任的归责原则主要有过错责任原则和严格责任原则。过错责任原则在各国的立法或司法实践中可以表现为直接的过错责任原则和过错推定原则,而过错推定原则又可表现为一般过错推定和特殊的过错推定。本章内容便选取一般过错推定的典型——德国民法中的违约归责原则、特殊过错推定的典型——法国民法中的违约归责原则和严格责任原则的典型——英美合同法上的违约归责原则进行具体分析,以期真正了解两大违约归责原则在立法实践中的本来面目。 第三章:在第二章的基础上,全面比较分析两大法系的归责原则。通过横向比较各国中心归责原则及该中心原则的免责事由和中心归责原则及其它归责原则各自的适用范围,论证了两大法系归责原则在实质上趋于一致。 第四章:分析中国合同法上的违约归责原则。认为我国合同法同样规定了三种归责原则:严格责任、过错责任、绝对责任,而以严格责任为主。利用第三章的结论检讨了我国各原则立法上的得失,并提出若干修法建议。
[Abstract]:The principle of liability for breach of contract refers to the principles and basic standards that should be followed when judging the factual consequences of breach of contract. Different imputation principles reflect different value judgments, determine the formation of the corresponding constituent elements of liability, and play a decisive role in the system of liability for breach of contract. The legislative choice of the principle of imputation for breach of contract has been the focus of discussion in the field of contract law in China for more than ten years. The views of commentators can be divided into three categories: first, strict liability in Anglo-American law is the best choice; In the second category, the principle of fault liability in civil law is the best choice, and in the third category, the principle of liability imputation in the two legal systems is identical in essence. This paper agrees with the third point of view and tries to prove it forcefully and fully. The structure and research methods of this paper are as follows: chapter 1: the general theory of the principle of imputation for breach of contract. Rigorous concepts are the basis and premise of any scientific discussion. The purpose of this chapter is to give a clear boundary between the connotation and extension of the concepts of liability for breach of contract, exemption from liability, fault liability, presumption of fault, strict liability, non-fault liability and so on. And take these concepts as fulcrum and thinking tool, lay the foundation for the construction of the full-text system. In addition, the links between some of the key concepts will also be explained as necessary. Chapter two: analysis of specific legislative examples. The principle of imputation of liability for breach of contract mainly includes the principle of fault liability and the principle of strict liability. The principle of fault liability can be expressed as direct principle of fault liability and presumption of fault in the legislation or judicial practice of various countries, and the principle of presumption of fault can be represented as general presumption of fault and special presumption of fault. This chapter selects the typical presumption of general fault-the principle of imputation of breach of contract in German civil law. The typical example of presumption of special fault-the principle of liability for breach of contract in French civil law and the model of principle of strict liability-the principle of liability for breach of contract in the Anglo-American contract Law is analyzed in detail. In order to truly understand the two major default imputation principle in the legislative practice of the original face. Chapter three: on the basis of the second chapter, the author makes a comprehensive comparative analysis of the imputation principle of the two legal systems. Through a horizontal comparison of the central imputation principle and the scope of application of the central imputation principle and other imputation principles, it is proved that the attribution principle of the two legal systems tends to be the same in essence. Chapter four: analyze the principle of imputation of breach of contract in Chinese contract law. The author thinks that the contract law of our country also stipulates three kinds of imputation principles: strict liability, fault liability, absolute liability, and strict liability. Based on the conclusion of Chapter 3, this paper reviews the gains and losses of the principle legislation of our country, and puts forward some suggestions for amending the law.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D913
本文编号：2452144
[Abstract]:The principle of liability for breach of contract refers to the principles and basic standards that should be followed when judging the factual consequences of breach of contract. Different imputation principles reflect different value judgments, determine the formation of the corresponding constituent elements of liability, and play a decisive role in the system of liability for breach of contract. The legislative choice of the principle of imputation for breach of contract has been the focus of discussion in the field of contract law in China for more than ten years. The views of commentators can be divided into three categories: first, strict liability in Anglo-American law is the best choice; In the second category, the principle of fault liability in civil law is the best choice, and in the third category, the principle of liability imputation in the two legal systems is identical in essence. This paper agrees with the third point of view and tries to prove it forcefully and fully. The structure and research methods of this paper are as follows: chapter 1: the general theory of the principle of imputation for breach of contract. Rigorous concepts are the basis and premise of any scientific discussion. The purpose of this chapter is to give a clear boundary between the connotation and extension of the concepts of liability for breach of contract, exemption from liability, fault liability, presumption of fault, strict liability, non-fault liability and so on. And take these concepts as fulcrum and thinking tool, lay the foundation for the construction of the full-text system. In addition, the links between some of the key concepts will also be explained as necessary. Chapter two: analysis of specific legislative examples. The principle of imputation of liability for breach of contract mainly includes the principle of fault liability and the principle of strict liability. The principle of fault liability can be expressed as direct principle of fault liability and presumption of fault in the legislation or judicial practice of various countries, and the principle of presumption of fault can be represented as general presumption of fault and special presumption of fault. This chapter selects the typical presumption of general fault-the principle of imputation of breach of contract in German civil law. The typical example of presumption of special fault-the principle of liability for breach of contract in French civil law and the model of principle of strict liability-the principle of liability for breach of contract in the Anglo-American contract Law is analyzed in detail. In order to truly understand the two major default imputation principle in the legislative practice of the original face. Chapter three: on the basis of the second chapter, the author makes a comprehensive comparative analysis of the imputation principle of the two legal systems. Through a horizontal comparison of the central imputation principle and the scope of application of the central imputation principle and other imputation principles, it is proved that the attribution principle of the two legal systems tends to be the same in essence. Chapter four: analyze the principle of imputation of breach of contract in Chinese contract law. The author thinks that the contract law of our country also stipulates three kinds of imputation principles: strict liability, fault liability, absolute liability, and strict liability. Based on the conclusion of Chapter 3, this paper reviews the gains and losses of the principle legislation of our country, and puts forward some suggestions for amending the law.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D913
【引证文献】
相关期刊论文 前1条
1 汤鹏;;试论我国《合同法》违约责任归责原则的规定[J];中国商界(下半月);2008年04期
相关硕士学位论文 前1条
1 赵芬;“过错”作为我国违约责任构成要件的合理性分析[D];中国政法大学;2011年
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