预约认定问题研究

发布时间：2018-06-14 12:24

本文选题：预约 + 本约　；参考：《上海师范大学》2017年硕士论文

【摘要】：随着商品经济的发展和《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》的颁布,实践中的预约纠纷越来越多,本文主要就“预约认定”这一预约纠纷处理中的一项难题进行探讨。本文从最高院处理的两则案例着手,并且通过对当前司法实务中常见的预约纠纷进行梳理,认为预约认定问题不仅涉及领域越来越多,而且没有统一的认定标准。在梳理现行立法体系与学术后,认为对预约认定出现困难的问题根源在传统的学界通说对预约概念蕴含的特征的认识与表述上。预约传统概念中“将来订立一定合同”的这一内涵具备一定合理性,但应当对该内涵进行限缩解释。在通过考察预约概念的历史沿革后认为,还应当赋予其“障碍性”特征,该特征构成探究合同中当事人内心真意最重要的因素。基于该项特征的挖掘,可以重新给预约作如下定义:指由于事实或法律上的障碍,使得当事人约定将来进一步订立本合同的合同。从重构后的预约概念出发,在具体操作层面,在结合合同文义进行考察时,更应当重点考察合同订立的背景,综合运用合同解释的方法对合同进行定性,避免形式审查。同时,在重新对预约认知与定义的前提下认为,预约中当事人仅负订立本约的权利义务,若发现当事人还负有本约中的权利义务,应当认定合同为本约。因此,合同标的的考察也可反过来对合同的性质进行检验。通过对实践中常见案型的梳理,可对预约与本约进行类型化区分,进而通过上述方法系统认定合同的性质。文章最后对预约认定过程中涉及的相关法律的理解与适用问题作出辨析与检讨。认为多数法院在涉及合同定性时会径直适用《合同法解释二》第1条,即在合同具备标的物与价款时便认定合同为本约,这可能导致忽略当事人的内心真意,进而对合同性质产生错误的认定,因此这一直接适用的方法欠缺妥当性,核心仍在把握预约的概念,重视合同解释方法的体系化运用。《房屋买卖合同解释》第五条所涉及合同应当直接认定为本约。当事人订立预约后直接履行的,应认定成立了本约法律关系,本约内容参照预约中的内容。未来我国《民法典》“合同编”中应当对预约的概念进行规定,从体系上减少预约认定时法律理解与适用上的错误。
[Abstract]:With the development of the commodity economy and the promulgation of the Supreme people's Court's interpretation of the legal issues applicable to the trial of disputes concerning sale and purchase contracts, there are more and more pre-contract disputes in practice. This paper mainly discusses the problem of appointment confirmation, which is a difficult problem in the settlement of reservation dispute. This paper starts with the two cases handled by the Supreme Court, and through combing the common disputes of appointment in the current judicial practice, thinks that the problem of appointment and confirmation not only involves more and more fields, but also does not have a unified identification standard. After combing the current legislative system and the academic, the author thinks that the problem of the difficulty in the confirmation of appointment lies in the understanding and expression of the characteristics of the concept of reservation in the traditional academic theory. The connotation of "concluding a certain contract in the future" in the traditional concept of reservation has certain rationality, but it should be interpreted by restriction and contraction. After examining the historical evolution of the concept of reservation, the author holds that it should also be endowed with the feature of "obstacle", which constitutes the most important factor in the exploration of the parties' true intention in the contract. Based on this feature, the reservation may be redefined as follows: a contract under which the parties agree to further enter into this contract in the future due to factual or legal obstacles. Starting from the concept of reservation after reconfiguration, in the specific operation level, we should pay more attention to the background of contract conclusion, and make use of the method of contract interpretation to analyze the contract and avoid formal examination when we combine the meaning of contract with the meaning of contract. At the same time, on the premise of redefining the cognition and definition of the reservation, it is considered that the parties in the reservation only bear the rights and obligations of concluding this contract, and if it is found that the parties also have the rights and obligations in this contract, the contract should be regarded as the contract. Therefore, the inspection of the subject matter of the contract may in turn test the nature of the contract. By combing the common case types in practice, we can classify the reservation and the contract, and then systematically identify the nature of the contract through the above methods. At the end of the paper, the author analyzes and reviews the understanding and application of relevant laws in the process of appointment and confirmation. It is considered that most courts will directly apply Article 1 of the contract Law interpretation 2 when it comes to the characterization of the contract, that is, when the contract has the subject matter and the price, the contract will be regarded as the original contract, which may lead to the neglect of the parties' inner sincerity. Thus, the nature of the contract is found to be wrong, so this directly applicable method lacks appropriateness, and the core is still grasping the concept of appointment. Attention should be paid to the systematic application of the method of contract interpretation. The contract referred to in Article 5 of the contract of House purchase and purchase shall be directly recognized as this contract. If the parties make an appointment and perform it directly, the legal relationship shall be established, and the contents of this contract shall refer to the contents of the reservation. In the future, the concept of reservation should be stipulated in the contract Edition of Civil Code of our country, and the mistakes in legal understanding and application should be reduced systemically.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6

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