合同支付期限附条件处理规则构建

发布时间：2018-05-22 09:38

本文选题：合同 + 支付期限　；参考：《广东外语外贸大学》2015年硕士论文

【摘要】：合同支付期限作为合同的主要条款,是评价当事人是否正确、全面履行合同义务的一个关键点,一般在合同中予以明确约定。但在现实生活中存在这么一种情况,人们在订立合同时出于各种原因,约定的支付期并非是确定之期日,而是对支付期限设定了一定的条件,条件成就之时支付期方届至,在条件未成就之前,支付期是不确定的。典型的表现如:A公司向B公司出售一批货物,其合同中约定待B公司从C公司处收到另一笔款项后才向A公司支付货款。当C公司一直不向B公司支付货款时,A公司能否主张B公司付款?对于这种情形,生活中已屡见不鲜,但目前学界鲜见文献对之予以探讨,在司法实践中分歧较大,可以说是同案异判情况较为普遍。在理论与司法领域,对支付期限附条件合同的法律性质主要有三种观点,第一种观点认为属于附条件合同,第二种观点认为属于附期限合同,第三种观点认为属于合同履行期限约定不明的合同。与此相对应,处理规则也有三种,即适用附条件合同、附期限合同以及合同履行期限约定不明的处理规则。本文认为,支付期限附条件合同既不属于附条件合同,也不属于附期限合同。本文部分同意第三种观点,一方面,认同合同支付期限附条件条款是对合同履行期限的约定,另一方面,简单归于“履行期限约定不明”不够准确,因为没有反映出当事人在支付期限上附条件的真实意图是给债务人一个还款的宽限期,因此合同支付期限附条件更确切地说应属于对履行期限之宽限期约定不明。关于合同支付期限附条件的处理规则,适用附条件合同和附期限合同两种处理规则都是错误的。而适用合同履行期限约定不明的处理规则有不足之处,主要在于赋予债权人可随时要求债务人履行债务,在某些时候没有保护到债务人的期限利益,对债务人不公平。因此,本文在借鉴外国的相关法律规定、学者观点和相关案例的基础上,提出了新的处理规则建议,即首先默认为分期付款,在当事人一方或双方认为默认分期还款将导致不公时有权请求法院指定一个合理的期限。本文除“问题之提出”外,分四部分书写。主要包括介绍合同支付期限附条件的内涵、现行处理规则及不足、主要国家的处理规则和借鉴和具体规则的完备。第一部分是合同支付期限附条件的法律性质。介绍合同支付期限附条件的概念、特点、关于法律性质的几种观点介绍、合同支付期限附条件的法律性质的确定等。第二部分是介绍现行的处理规则及不足。目前在司法实践中合同支付期限附条件的情形有不同的处理方式,通过介绍现行处理规则分析不足之处。第三部分介绍国外的相关法律规定、学说和案例,旨在为完善我国合同履行期限附条件提供一些借鉴。第四部分是完善处理规则的建议。提出处理合同支付期限附条件的新规则建议。
[Abstract]:As the main clause of the contract, the term of the contract payment is a key point to evaluate whether the parties are correct or not and to fulfill the obligations of the contract in an all-round way, which is generally stipulated in the contract. In real life, however, there is a situation in which, for various reasons, when people conclude a contract, the agreed payment period is not a fixed date, but a certain condition has been set for the payment period to come to an end when the conditions are met. The payment period is uncertain until the conditions are met. Typical performance: company A sells a lot of goods to Company B, and the contract provides that Company B will not pay to Company A until it receives another payment from Company C. When Company C has been unable to pay Company B for the goods, can Company A claim to Company B for payment? For this situation, life has been common, but the academic literature to discuss it, in the judicial practice is quite different, it can be said to be more common in the same case. In the field of theory and judicature, there are three main views on the legal nature of conditional contract for payment period. The first view is that it belongs to conditional contract, the second view is that it belongs to contract with term. The third view is that the contract performance term is unclear. Correspondingly, there are three kinds of processing rules, that is, the conditional contract, the attached term contract and the treatment rule with unclear terms of performance. This paper holds that the term of payment contract is neither a conditional contract nor a term contract. This paper partly agrees with the third view. On the one hand, it agrees that the term of payment is an agreement on the term of performance of the contract, on the other hand, it is simply attributed to the inaccuracy of "the term of performance is not clear." Because it does not reflect that the true intention of the parties to attach conditions to the payment period is to give the debtor a grace period for repayment, the term of payment attached to the contract is more precisely defined as an agreement on the grace period for the period of performance. It is wrong to apply both conditional and conditional rules to deal with the term of payment of a contract. However, there are some shortcomings in the application of the treatment rules which are unclear in the term of performance of the contract. The main reason is that the creditor can be required to perform the debt at any time, and at some times he does not protect the interests of the debtor in the time limit, which is unfair to the debtor. Therefore, on the basis of drawing lessons from the relevant laws and regulations of foreign countries, scholars' viewpoints and relevant cases, this paper puts forward some suggestions for new processing rules, that is, first of all, the default is installment payment. If one or both parties consider that default instalments will result in an injustice, they have the right to ask the court for a reasonable period of time. This article is written in four parts, except for the question. It mainly introduces the connotation of the term attached to the contract payment period, the current treatment rules and deficiencies, the handling rules of the main countries and their reference and the completeness of the specific rules. The first part is the legal nature of the term of payment attached to the contract. This paper introduces the concept and characteristics of the term of payment attached to the contract, several viewpoints on the nature of the law, and the determination of the legal nature of the term of payment attached to the contract. The second part is to introduce the current treatment rules and deficiencies. At present, there are different ways to deal with the condition of contract payment term in judicial practice. The third part introduces the relevant laws, theories and cases of foreign countries, aiming to provide some reference for perfecting the conditions attached to the term of performance of contracts in China. The fourth part is the suggestion of perfecting the handling rules. Propose new rules to deal with the term of payment attached to the contract.
【学位授予单位】：广东外语外贸大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.6

【参考文献】