继续性合同基本理论问题研究
发布时间：2019-05-14 06:46
【摘要】：作为现代合同法的一种基本分类，合同可以区分为一时性合同与继续性合同。这种由于时间因素的介入而产生的合同分类，在合同法的理论和实践中都有着重要的意义。我国合同法虽然在分则中规定了供用电、水、气、热力合同以及租赁合同、保管合同、仓储合同等典型继续性合同的相关规范，但并没有在总则中对继续性合同作出一般性的规定。在现代企业交易中，为了减少交易成本、避免繁琐的缔约程序，继续性合同已经逐渐演变为一种主要的交易方式；同时，新型的继续性合同层出不穷，如连锁加盟店合同、特许经营店合同等等。由于继续性合同在经济领域的广泛应用，随之而来的合同纠纷也日益增多，为了给司法裁判处理继续性合同案件提供充分的理论依据，学说上对于继续性合同的研究有待进一步深入。由于时间因素的介入、信赖关系的加强，继续性合同具有不同于一时性合同的许多特点：首先，合同的给付具有持续性；其次，合同关系若未定有期限且履行后未加以终止则可无限延续下去；最重要的是，时间的长度对总给付的内容与范围有决定性意义。相应地，在法律适用上继续性合同与一时性合同也有着诸多不同之处，如合同无效、被撤销和解除之后的效力问题、抗辩权的行使以及诉讼时效的起算等等，本文将在合理界定继续性合同的基础上对这些问题展开讨论。 全文主要分为五个部分：首先，通过介绍德国、我国台湾地区以及大陆学者对继续性合同概念界定的不同观点，总结归纳出继续性合同的概念、特征，为进一步分析继续性合同的具体制度建立科学合理的逻辑起点。其次，明确继续性合同的类型，根据合同持续性给付义务的产生依据及表现形态的不同，将继续性合同分为固有的继续性合同与继续性供给合同，并对有争议的诸种合同类型进行分析，以廓清其性质。再次，深入研究继续性合同的本质，通过对相反意见的驳斥，进一步明确继续性合同的本质是总给付的范围决定于应为给付时间的长度，，并讨论了该本质在不同类型的继续性合同中的具体体现，以期对继续性合同形成更加清晰完整的认识。然后，着重分析继续性合同在现代合同法体系中的地位以及合同法规制继续性合同的立法技术，进而发现继续性合同与现代合同法理论的不协调之处，为问题的解决找准靶心。最后，提出完善继续性合同相关法律制度的建议，一方面，通过检讨国外特别是德国的相关法律制度，提出解决问题的立法构想，以期为法律的完善提供理论支撑；另一方面采用法解释学的方法，试图在现有的立法框架内对相关条文进行合乎体系、合乎逻辑的解释，以期为司法实践提供一种切实可行的解释论途径。
[Abstract]:As a basic classification of modern contract law, contract can be divided into temporary contract and continuous contract. This kind of contract classification, which is caused by the intervention of time factor, is of great significance in the theory and practice of contract law. Although the contract law of our country stipulates the relevant norms of typical succession contracts such as power supply, water, gas, heat and heat contracts, lease contracts, custody contracts, warehousing contracts, etc., However, there is no general provision for succession contracts in the general provisions. In modern enterprise transaction, in order to reduce transaction cost and avoid tedious contracting procedure, continuous contract has gradually evolved into a main way of transaction. At the same time, new succession contracts emerge in endlessly, such as chain franchisee contract, franchising shop contract and so on. Due to the wide application of continuous contract in the economic field, the following contract disputes are also increasing day by day, in order to provide sufficient theoretical basis for judicial adjudication to deal with continuous contract cases. In theory, the study of continuous contract needs to be further studied. Due to the intervention of time factor and the strengthening of trust relationship, the continuous contract has many characteristics different from the temporary contract: first of all, the payment of the contract is continuous; Secondly, if the contractual relationship is not fixed and the performance is not terminated, it can continue infinitely; the most important thing is that the length of time is decisive to the content and scope of the total payment. Accordingly, there are many differences between the continuous contract and the temporary contract in the application of the law, such as the invalidity of the contract, the validity after cancellation and termination, the exercise of the right of defense and the commencement of the statute of limitations, and so on. This paper will discuss these problems on the basis of reasonable definition of succession contract. The full text is mainly divided into five parts: first of all, by introducing the different viewpoints of German, Taiwan and mainland scholars on the definition of the concept of continuous contract, this paper summarizes the concept and characteristics of continuous contract. In order to further analyze the specific system of succession contract to establish a scientific and reasonable logical starting point. Secondly, it clarifies the type of continuous contract, according to the basis of the obligation of continuous payment of the contract and the different forms of expression, the continuous contract is divided into the inherent continuous contract and the continuous supply contract. The controversial contract types are analyzed in order to clarify their nature. Thirdly, by deeply studying the essence of the continuous contract, and by refuting the contrary opinion, it is further clear that the essence of the continuous contract is that the scope of the total payment depends on the length of the payment time. This paper also discusses the concrete embodiment of this essence in different types of continuous contracts, in order to form a clearer and complete understanding of the continuous contracts. Then, it focuses on the status of continuous contract in the modern contract law system and the legislative technology of continuous contract in the system of contract law, and then finds out the inconsistency between continuous contract and modern contract law theory, so as to find the target for the solution of the problem. Finally, some suggestions are put forward to improve the relevant legal system of continuous contract. On the one hand, through reviewing the relevant legal system in foreign countries, especially in Germany, this paper puts forward the legislative conception to solve the problem, in order to provide theoretical support for the perfection of the law; On the other hand, by using the method of legal hermeneutic, this paper tries to make a systematic and logical interpretation of the relevant provisions in the existing legislative framework, in order to provide a feasible way of interpretation for judicial practice.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6
本文编号：2476511
[Abstract]:As a basic classification of modern contract law, contract can be divided into temporary contract and continuous contract. This kind of contract classification, which is caused by the intervention of time factor, is of great significance in the theory and practice of contract law. Although the contract law of our country stipulates the relevant norms of typical succession contracts such as power supply, water, gas, heat and heat contracts, lease contracts, custody contracts, warehousing contracts, etc., However, there is no general provision for succession contracts in the general provisions. In modern enterprise transaction, in order to reduce transaction cost and avoid tedious contracting procedure, continuous contract has gradually evolved into a main way of transaction. At the same time, new succession contracts emerge in endlessly, such as chain franchisee contract, franchising shop contract and so on. Due to the wide application of continuous contract in the economic field, the following contract disputes are also increasing day by day, in order to provide sufficient theoretical basis for judicial adjudication to deal with continuous contract cases. In theory, the study of continuous contract needs to be further studied. Due to the intervention of time factor and the strengthening of trust relationship, the continuous contract has many characteristics different from the temporary contract: first of all, the payment of the contract is continuous; Secondly, if the contractual relationship is not fixed and the performance is not terminated, it can continue infinitely; the most important thing is that the length of time is decisive to the content and scope of the total payment. Accordingly, there are many differences between the continuous contract and the temporary contract in the application of the law, such as the invalidity of the contract, the validity after cancellation and termination, the exercise of the right of defense and the commencement of the statute of limitations, and so on. This paper will discuss these problems on the basis of reasonable definition of succession contract. The full text is mainly divided into five parts: first of all, by introducing the different viewpoints of German, Taiwan and mainland scholars on the definition of the concept of continuous contract, this paper summarizes the concept and characteristics of continuous contract. In order to further analyze the specific system of succession contract to establish a scientific and reasonable logical starting point. Secondly, it clarifies the type of continuous contract, according to the basis of the obligation of continuous payment of the contract and the different forms of expression, the continuous contract is divided into the inherent continuous contract and the continuous supply contract. The controversial contract types are analyzed in order to clarify their nature. Thirdly, by deeply studying the essence of the continuous contract, and by refuting the contrary opinion, it is further clear that the essence of the continuous contract is that the scope of the total payment depends on the length of the payment time. This paper also discusses the concrete embodiment of this essence in different types of continuous contracts, in order to form a clearer and complete understanding of the continuous contracts. Then, it focuses on the status of continuous contract in the modern contract law system and the legislative technology of continuous contract in the system of contract law, and then finds out the inconsistency between continuous contract and modern contract law theory, so as to find the target for the solution of the problem. Finally, some suggestions are put forward to improve the relevant legal system of continuous contract. On the one hand, through reviewing the relevant legal system in foreign countries, especially in Germany, this paper puts forward the legislative conception to solve the problem, in order to provide theoretical support for the perfection of the law; On the other hand, by using the method of legal hermeneutic, this paper tries to make a systematic and logical interpretation of the relevant provisions in the existing legislative framework, in order to provide a feasible way of interpretation for judicial practice.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6
【参考文献】
相关期刊论文 前6条
1 李玉文;论继续性合同中的抗辩权[J];法商研究;2004年03期
2 崔建远;;履行抗辩权探微[J];法学研究;2007年03期
3 万挺;;继续性合同解除若干实务问题探讨[J];人民司法;2008年22期
4 栾志红;关于继续性合同的几个问题[J];法学论坛;2002年05期
5 叶竹盛;;论继续性合同解除制度的完善[J];新学术;2007年02期
6 屈茂辉;张红;;继续性合同:基于合同法理与立法技术的多重考量[J];中国法学;2010年05期
相关硕士学位论文 前2条
1 缪欢;合同解除效力探究[D];华东政法学院;2006年
2 丁锐;继续性合同研究[D];黑龙江大学;2009年
本文编号：2476511
本文链接：https://www.wllwen.com/falvlunwen/hetongqiyue/2476511.html
