论买卖合同中物之瑕疵担保责任的定位

发布时间：2018-05-17 17:16

本文选题：物之瑕疵担保责任 + 违约责任　；参考：《扬州大学》2016年硕士论文

【摘要】：买卖是最频繁的市场现象,它主要是通过买卖合同实现的。买卖合同在社会经济生活中是最常见、最基本、最典型的商品交换的形式和法律关系。其中,物之瑕疵、权利瑕疵与危险转移三者构成买卖合同规定的三个重点。①瑕疵担保责任起源于罗马法,该制度自产生之日起即在稳定交易关系、维护交易公正方面发挥着重要的作用。但是随着社会进步、技术发展和商品流转加快,商品交易日趋多元化与复杂化,操作较为繁琐的物之瑕疵担保责任制度在保证交易安全便捷方面开始有些力不从心。特别是2002年《德国债法现代化法》的颁布,德国法上的物之瑕疵担保责任被整合到一般给付保障法之中,②物之瑕疵担保责任整合于一般违约责任之中。此时,物之瑕疵担保责任的独立性遭到了空前严重的质疑,引发了是否有必要坚持下去的思考。本文结合国内外的立法现状和经验以及我国理论、立法与司法实践,分析和阐述我国物之瑕疵担保责任的最终归属即物之瑕疵担保责任定位。就其与违约责任的关系,我国则采取整合模式,即将物之瑕疵担保责任统合与违约责任之中,但仍然保持其一定的特殊性在解决其定位定性的问题基础上,则着重分析和提出修缮物之瑕疵担保责任的路径方案,主要确定了瑕疵认定方式的合理化、物之瑕疵范围的扩大化、买受人检验通知义务的缩减化、买受人“明知失权”原则的限制化以及救济方式的法定化和层次化这五种解决路径。本文分别详细阐释和论证了这五种方法的必要性和可行性,希望从客观实际的角度,来完善我国违约责任体系下物之瑕疵担保责任的相关立法。从而促使生产企业履行其保证与提高产品质量的社会职责,进而从根本上使得消费者的权益得到应有的保障,推动消费生产关系的和谐、稳定。保证消费者与生产、销售者处于相对平等的法律状态,同时也兼顾买卖合同的公平公正。最终促使我国市场交易体制的自我完善与发展,让诚实信用真真实实地贯彻到商品买卖交易中,从而稳定和发展具有中国特色的社会主义市场经济体制,巩固和繁荣我国的经济。
[Abstract]:Buying and selling is the most frequent market phenomenon, it is mainly realized through the contract of sale. Sale and purchase contract is the most common, basic and typical form and legal relationship of commodity exchange in social and economic life. Among them, the defects of things, the defects of rights and the transfer of risks constitute the three key points of the contract of sale and purchase. 1. The liability for guarantee of defects originates from the Roman law, and the system has been in the stable transaction relationship since the date of its emergence. It plays an important role in safeguarding the fairness of the transaction. However, with the progress of society, the development of technology and the acceleration of commodity circulation, commodity trading is becoming more and more diversified and complicated. In particular, with the promulgation of the German Law on the Modernization of the German debt Law in 2002, the liability for defective warranty in German law was integrated into the general law of payment protection and the liability for defective security of things was integrated into the general liability for breach of contract. At this time, the independence of warranty liability for defects has been seriously questioned, causing whether it is necessary to persist. Based on the domestic and foreign legislative situation and experience as well as our country's theory, legislation and judicial practice, this paper analyzes and expounds the ultimate attribution of the imperfection guarantee liability in our country, that is, the localization of the imperfection guarantee liability. With regard to the relationship between the liability for breach of contract and the liability for breach of contract, our country adopts the mode of integration, that is, the liability for imperfection guarantee and the liability for breach of contract, but still maintains its particularity on the basis of solving the problem of positioning and characterization. Then the paper analyzes and puts forward the path scheme of warranty liability for defects of the repair, mainly determines the rationalization of the way of defect identification, the expansion of the scope of defects of the property, and the reduction of the obligation of the buyer to inspect the notice. The limitation of the principle of "knowing loss of right" and the legalization and stratification of relief are the five ways to solve the problem. This paper explains and proves the necessity and feasibility of these five methods in detail, hoping to perfect the relevant legislation of the imperfection guarantee liability under the liability system of breach of contract in our country from the angle of objective reality. In order to promote the production enterprises to fulfill their social responsibility to ensure and improve the quality of products, thus fundamentally make the rights and interests of consumers to be guaranteed, promote the harmony and stability of consumer relations of production. To ensure that consumers and producers and sellers are in a relatively equal legal state, and at the same time give consideration to the fairness and fairness of the contract of sale and purchase. In the end, it will promote the self-improvement and development of the market trading system in our country, so that honesty and credit can be truly implemented in commodity trading transactions, thereby stabilizing and developing the socialist market economy system with Chinese characteristics. Consolidate and prosper our economy.
【学位授予单位】：扬州大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.6

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