预约合同之违约责任研究

发布时间：2018-05-16 13:45

本文选题：预约合同 + 违约责任　；参考：《海南大学》2017年硕士论文

【摘要】：预约的本质是一种合同,我国合同法中并未对预约制度做出明确规定,仅在相关司法解释中有所涉及。最高人民法院《关于审理买卖合同纠纷案件适用法律问题的解释》(以下简称买卖合同解释)第二条指出违反预约合同需要承担违约责任。但该条规定过于笼统,并未对预约合同违约责任的具体承担形式作出说明,理论中争议不断,司法实践中相同的案子有时也会出现大相径庭的结果。因此,对预约合同违约责任进行深入探讨,不仅是对理论的丰富,也能对实践产生指导作用。本文分为三部分对预约合同违约责任问题进行研究。第一部分是我国预约合同违约责任立法、司法现状及存在的问题。首先,从立法的角度看,我国对预约合同法律责任的规定还未形成全面规范的体系。仅仅凭借两条司法解释显得过于单薄,难以应对现实生活中纷繁复杂的预约合同纠纷。其次,通过检索、筛选和对比分析我国相关实务案例,可以发现争议主要集中在预约合同可否强制履行和预约合同违约损害赔偿的范围这两个方面,裁判标准并不统一。第二部分是预约合同违约责任的比较法考察。美国法根据预约类型的不同赋予不同的缔约义务。德国法以支持缔约请求为原则,且允许诉讼合并。瑞士法支持以强制方式缔结本约,不允许越过缔约之诉而直接诉请强制履行。至于损害赔偿,德国法院和瑞士法院均认为本约履行利益也是预约的损失。通过对德国、瑞士和美国有关预约法律制度的对比与分析,我国应在合同法中对预约合同加以明确,同时对预约合同的适用范围不应加诸多限制。第三部分是我国预约合同违约责任争议问题之分析。预约合同,作为合同的一种,理应适用合同法之一般原理,当出现违约情形时,守约方可诉请强制履行合同。预约合同以将来阻碍情形消除时订立本约为最终目的,强制履行可以很好的实现这个目的。预约合同损害赔偿范围应以信赖利益为限,预约合同毕竟有别于本约合同,赔偿责任应有所区别。在订立预约合同时,本约的具体交易尚未发生,故不存在履行利益。而信赖利益赔偿时应将机会利益包含在内,以弥补守约一方因各种原因而无法再寻找替代交易行为之损失。
[Abstract]:The essence of reservation is a kind of contract, which is not clearly stipulated in the contract law of our country, but only involved in the relevant judicial interpretation. Article 2 of the Supreme people's Court on the interpretation of the legal issues applicable to the hearing of disputes over Sale and purchase contracts (hereinafter referred to as the interpretation of the Sale contract) Article 2 points out that breach of an appointment contract shall be liable for breach of contract. However, this provision is too general, does not explain the specific form of contractual liability for breach of contract, theory is constantly controversial, judicial practice of the same cases will sometimes appear very different results. Therefore, it is not only rich in theory, but also instructive to practice to probe into the liability for breach of contract. This article divides into three parts to carry on the research to the reservation contract breach responsibility question. The first part is the legislation, judicial status and existing problems of the liability for breach of contract. First of all, from the legislative point of view, China has not yet formed a comprehensive normative system for the legal liability of appointment contracts. Just relying on two judicial explanations is too weak to deal with the complicated contract disputes in real life. Secondly, through the search, screening and comparative analysis of relevant practical cases in China, we can find that the dispute mainly focuses on whether the appointment contract can be enforced and the scope of the contract for breach of contract damages, and the judgment standard is not uniform. The second part is a comparative study of the liability for breach of contract. American law assigns different contracting obligations according to the type of reservation. German law is based on the principle of supporting the contracting claim and allows for the joinder of proceedings. Swiss law supports the conclusion of this treaty by force and does not allow direct application for enforcement. As for damages, both the German and Swiss courts held that the performance of the contract was also an advance loss. Through the comparison and analysis of the legal system of reservation in Germany, Switzerland and the United States, it is suggested that our country should define the contract of appointment in the contract law, and at the same time, should not add many restrictions on the scope of application of the contract of appointment. The third part is the analysis of the disputes about the liability for breach of contract in our country. Appointment contract, as a kind of contract, should be applied to the general principle of contract law. The purpose of an appointment contract is to conclude this contract in the future when obstacles are removed, which can be well achieved by compulsory performance. The scope of precontract damages should be limited by reliance interest. After all, the reservation contract is different from this contract, and the liability should be different. At the time of the conclusion of the contract, the specific transaction of this contract has not taken place, so there is no interest in performance. In order to make up for the loss of the parties to the contract, they can no longer find a substitute for the transaction behavior due to various reasons.
【学位授予单位】：海南大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6

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