预约的效力及违约责任

发布时间：2018-03-18 09:27

本文选题：预约　切入点：效力　出处：《浙江大学》2017年硕士论文　论文类型：学位论文

【摘要】：最高人民法院颁布的《关于审理买卖合同纠纷案件适用法律问题的解释》第2条明确了预约作为一种独立合同的合法性,使得这一尘封多年的合同类型得以回归大众的视野,也由此引发了国内理论和实务界的广泛讨论。本文将结合国内外理论学说和最新的司法案例,旨在论证预约的效力应尊重当事人的意思、及预约的违约责任。引言、预约的司法实践现状是文章的第一部分,意在提出问题和展开问题,点明预约在司法实践中适用的情况和争议。这一部分通过对五个典型案例的梳理,简要地介绍司法实践中对预约的认定和适用,说明我国法院对预约的裁判非常不统一,甚至将预约直接认定为本约。然后,在"预约效力的探究"一章中,从实践回归理论,围绕预约的效力展开分析,介绍和评析目前学界对于预约效力的观点,即必须磋商说、应当缔约说和内容决定说,并提出本文的观点——意思解释说;接下来,探讨预约的义务,以为违反预约义务之后果,即违约责任作铺垫。文章的第三部分是"预约的违约责任"一章,共有三小节,依次分析继续履行、损害赔偿和定金、违约金的适用,并得出相应的结论。本文的观点是,判断预约的效力,应解释当事人的真实意思,以区分适用应当缔约说或必须磋商说;关于继续履行,只有具备必要条款、同时效力是应当缔约说的预约可支持强制缔约;而损害赔偿方面,只有具备必要条款,同时效力是应当缔约的预约可支持本约的履行利益,惟应将客观发生的情势变更纳入考量,其他类型的预约则应考量违约发生时,当事人所处的具体缔约阶段,综合确定损害赔偿额;定金的数额不应超过本约标的额的20%。
[Abstract]:Article 2 of the interpretation of the Law applicable to hearing cases of Sale and purchase contract disputes promulgated by the Supreme people's Court clarifies the legality of appointment as an independent contract, enabling this dust-laden type of contract to return to the public's vision. This article will combine the domestic and foreign theories and theories and the latest judicial cases to prove that the validity of the reservation should respect the meaning of the parties and the liability of breach of contract. The present situation of judicial practice of appointment is the first part of the article, which is intended to raise questions and unfold questions, and point out the situations and disputes applicable to appointment in judicial practice. In this part, five typical cases are combed. This paper briefly introduces the cognizance and application of the reservation in judicial practice, and explains that the court in our country is very inconsistent in the judgment of the reservation, and even regards the appointment directly as the book. Then, in the chapter of "the Inquiry into the validity of the appointment", the author returns the theory from the practice. Based on the analysis of the validity of the reservation, this paper introduces and evaluates the current views of the academic community on the validity of the reservation, that is, the theory of consultation, the theory of contracting and the decision of the content, and puts forward the viewpoint of this paper-meaning explanation; next, the obligation of the reservation is discussed. The third part of the article is the chapter of "liability for breach of contract", which consists of three sections: continuing performance, damages and down payment, and the application of liquidated damages, the third part of the article is to lay the groundwork for the consequences of breach of appointment obligations, that is, the liability for breach of contract. It is the opinion of this article that the validity of the appointment should be judged by explaining the true meaning of the parties, so as to distinguish between the parties, that is, the contracting party should be said or must be consulted, and that only the necessary provisions should be provided for the continuation of performance. The simultaneous effect is that the reservation which should be concluded may support the compulsory contracting; in the case of compensation for damages, only the necessary provisions are available, and the effect is that the reservation which should be concluded may support the interests of the performance of this treaty, However, the objective change of circumstances should be taken into account, and the other types of appointment should take into account the specific contracting stage in which the parties were in, and the amount of the down payment should not exceed 20% of the amount of the contract.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6

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