沉默作为意思表示的基本研究

发布时间：2018-04-23 08:47

本文选题：沉默 + 意思表示　；参考：《北京交通大学》2015年硕士论文

【摘要】：关于意思表示,大多数研究均以明示意思表示者为主要对象,对于沉默之考量并不多见,但沉默可构成意思表示之情形越来越受到重视,因此有必要对其进行研究与规范。本文第一部分主要介绍了沉默作为意思表示的基本范畴。沉默者,谓单纯不作为,表现为无语言、无文字、无符号及无举动,区别于明示意思表示、默示意思表示、意思实现以及需要通过补充解释填补的意思表示,其本质是具有表意间接性的特殊意思表示。第二部分介绍了沉默作为意思表示的法律规范及其类型化。一般情况下,沉默并没有法律价值,因而原则上不得作为意思表示,但在特殊情形下可构成意思表示。有的沉默被视为同意,有的则被视为拒绝,以此为据可以将沉默划分为积极的沉默和消极沉默。法律行为依据行为主体的单复数可以被划分单方法律行为和多方法律行为,后者又可以分为契约行为、共同行为及决议行为。沉默可构成部分单方法律行为,其他单方法律行为则不可以；在契约行为中,沉默可以构成承诺,但不能构成要约,因为要约是一个主动性的概念,且要约的内容必须明确具体方才有效,而沉默并不具备这些特征。共同行为是合伙协议、公司发起人协议一类的协议,由于须所有人的同意方可成立,若当事人沉默,则被视为拒绝,即是消极的沉默：对于决议行为,是根据多数决原则而产生的,沉默可以表示同意、拒绝或弃权,三者具有不同的法律意义,故沉默不得被视为意思表示。第三部分介绍沉默作为意思表示的理论基础。特殊情形之证成可以使沉默构成意思表示,这些特殊情形在域内外可表现为当事人之间的协议、法律明文规定以及符合交易习惯等。实际上这主要源于沉默者对不作为义务的违反,而不作为义务的来源有其深层次的理论基础,此可以从政治哲学、法理根源、法律实践、经济基础以及宗教理论等视角进行分析,各理论之间经过拣选、博弈的复杂过程,形成推定性规范之基础及形式：对合理信赖之保护和权利外观责任之适用。并且通过民法推定性规范的立法技术,在基础事实之上通过推定过程,从而得出推定事实,并且赋予受推定不利益影响者以反驳之权利,最后形成“如果A,则B,除非C”的逻辑结构,谓之沉默规则。第四部分介绍了沉默作为意思表示的构造路径。沉默作为意思表示必须符合一般意思表示之复合式概念之特征与结构,但又表现出与之不同的特质,主要体现在外部表示阶段的表示在法律视野中并不存在。人类由需求产生动机,从而产生目的意思和效果意思,形成其内部结构,但由于缺少外部表示环节,故而原则上不能视为意思表示,但约定、法定以及习惯通过对缺少表示之沉默进行补救,越过欠缺着的表示环节,以类表示的方式径直赋予其意思表示之意义,从而完成特定情况下当事人之沉默与意思表示之间的联系。最后一部分介绍沉默的未来发展趋势。在平衡意思自治原则的适用和保护合理信赖、交易安全的需求的过程中,沉默规则也随之发生变化,对该理论研究的下一个最重要的目标就是建构一个完整的沉默规则体系,不仅要建构体系,而且须对其现有不合理的规定进行更改,选择、构建适合促进交易、促进发展的规则。未来发展之趋势主要体现在以下几个方面：首先,在法律上有概括性的规定,以当事人约定、符合交易习惯和法律明文规定作为沉默构成意思表示的直接效力来源,并对其适用优先适用次序进行明确规定。其次,在具体性规定方面,增加沉默作为意思表示的数量,适宜地更改不合理之规定,完善规则体系。再次,在推定性法律规范中规定异态事实,且明确异态事实之证明范围；最后,赋予受到推定不利益影响者以反驳之权利,明确反驳方法与程序。
[Abstract]:With regard to the expression of meaning, most of the studies take the signifier as the main object, and the consideration of the silence is not much, but the situation of silence can constitute a more and more attention. Therefore, it is necessary to study and standardize it.
The first part of this article mainly introduces the basic category of silence as the expression of meaning. The silent person, which is simply inaction, is expressed as no language, no word, no sign and no action, which is distinguished from the express meaning expression, implied meaning expression, meaning realization and the meaning expression that needs to be filled by supplementary interpretation, its essence is expressive indirect The special meaning is expressed.
The second part introduces the legal norms and types of silence as the expression of meaning. In general, silence does not have legal value, so it can not be expressed as meaning in principle, but in special circumstances it can form meaning. Some silence is regarded as consent and some are regarded as refusal, according to which silence can be classified as positive. It can be divided into unilateral legal acts and multiple legal acts, which can be divided into contractual behavior, common behavior and resolution behavior. Silence can constitute part of the unilateral legal act, and other unilateral legal acts are not possible. In the contract behavior, silence can be constructed. A promise is a promise, but it does not constitute an offer, for the offer is a concept of initiative, and the content of the offer must be clearly and concretely effective, and the silence does not have these features. The common act is a partnership agreement, the agreement of the company initiator, which is set up by the consent of the owner, and is regarded as a refusal if the party is silent. It is a negative silence: the action of a resolution is produced on the basis of most of the principles of decision. Silence can express consent, refuse or abstain, and the three have different legal meanings, so silence is not considered as an expression of meaning.
The third part introduces the theoretical basis of silence as the expression of meaning. The evidence of special circumstances can make silence form the expression of meaning. These special situations can be expressed as agreements between the parties, legal provisions, and trade habits. In fact, it is mainly derived from the breach of the inaction by the silent person. The source of the obligation has its deep theoretical basis, which can be analyzed from the perspectives of political philosophy, legal origin, legal practice, economic foundation and religious theory, and the complex process between the various theories and the complex process of the game to form the basis and form of the presumptive norms: the protection of reasonable trust and the application of the liability for the appearance of rights. And through the legislative technology of the presumption of civil law, through the process of presumption on the basis of the basic facts, the facts are deduced and the right to refute is given to those who are presumed to be disinterested. Finally, the "if A, then B, unless C" is the logical structure, it is called the silence rule.
The fourth part introduces the construction path of silence as the expression of meaning. Silence is the characteristic and structure of the compound concept which must be expressed as the expression of the general meaning, but it shows the different characteristics, which is mainly embodied in the external expression stage, and does not exist in the legal field. The meaning and effect of the purpose of birth, form its internal structure, but because of the lack of external representation, it can not be regarded as the meaning of the meaning in principle, but the agreement, the legal and the habit through the lack of silence remedies, cross the missing link, and give the meaning of meaning directly in the way of class representation, so that it is completed. The connection between the silence of the parties and the declaration of intent under certain circumstances.
The last part introduces the trend of the future development of silence. In the process of balancing the application of the principle of autonomy and protecting the reasonable trust and the demand for the safety of the transaction, the silence rules also change. The next most important goal of the study is to construct a complete system of silence rules, not only to construct the system, but also to construct the system, but also to construct the system, but not only to construct the system, but also to construct the system, but also to construct the system, but not only to construct the system, but also to construct the system, but also to construct the system, and not only to construct the system, but also to construct the system. It is necessary to change, select and construct the rules that are suitable for promoting trade and promoting development. The trend of future development is mainly reflected in the following aspects: first, there is a general rule in law, with the parties' agreement, the direct effect of the expression of the meaning of silence as the expression of silence in accordance with the customs of the parties and the explicit provisions of the law. Secondly, in the specific provisions of the specific provisions, the increase of silence as the number of expression of meaning, the appropriate changes in the unreasonable regulations, the improvement of the rule system. Again, in the presumption of legal norms of different state of fact, and clear the scope of the different state of proof; finally, endowed to the subject. Presuming the non interest affected person refute the method and procedure with the right of refutation.

【学位授予单位】：北京交通大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D913

【参考文献】