迅捷公司诉蜀都实业公司房屋买卖合同纠纷案评析

发布时间：2018-07-01 19:50

本文选题：预约合同 + 本约合同　；参考：《湖南大学》2015年硕士论文

【摘要】：我国《合同法》中虽无关于预约合同的规定,但预约合同在实践中广泛存在,尤其是在商品房买卖中,通常以认购书、购房协议书等形式出现。2012年3月最高人民法院颁布的《关于审理买卖合同纠纷案件适用法律问题的解释》第2条在我国立法上首次使用“预约合同”这一术语,承认了认购书、购房协议书等文书的性质为预约合同,赋予了预约合同独立的法律地位,并规定了违反预约合同的责任。但对于什么是预约合同,预约合同具备何种效力并未做出明确规定,掀起了学界又一轮关于预约合同的讨论热潮。如何区分预约合同与本约合同、预约合同的效力判定等问题依旧是司法实践中的难点。因此,有必要对预约合同的概念和特征进行界定,找寻区分预约合同与本约合同的标准,并在预约合同分类的基础上探讨预约合同的效力。大陆法系下和英美法系下,预约的概念存在实质区别,我国学者将预约界定为“约定将来订立一定契约之契约”。从学理上看,预约合同与本约合同存在显著区别。而在实践中,区分预约合同与本约合同却存在较大困难。区分预约合同与本约合同的核心标准在于当事人的真实意思表示,仅从内容完备性上无法准确区分预约合同与本约合同,更不能遵从“疑约从本”原则,在无法判定是预约合同还是本约合同时都将其认定为本约合同,否则有违当事人的意思自治。对应美国学者范斯沃斯先生的分类,我国学者依据是否具备本约合同的主要条款,将预约合同分为“必须缔约的预约”和“必须磋商的预约”,其中的“主要条款”应是能决定合同类型与性质的条款,不限于当事人、标的和数量三项。基于预约的不同类型,在预约的效力上应采“内容决定说”：具备本约合同主要条款的预约合同产生必须缔约的效力,当事人负有缔结本约的义务；不具备本约合同主要条款的预约合同仅产生必须磋商的效力,当事人负有为缔结本约进行诚信磋商的义务。在《合同法》第36条的理解与适用上,其中的“一方已经履行主要义务”,应严格界定为一方已经履行全部主给付义务,如此方可以实际履行行为补正书面形式的欠缺。
[Abstract]:Although the contract law of our country has nothing to do with the stipulation of the reservation contract, it exists widely in practice, especially in the sale and purchase of commercial housing. In March 2012, the Supreme people's Court promulgated the interpretation of the applicable Law in handling disputes over Sale and purchase contracts. Article 2 of Article 2 used the term "appointment contract" for the first time in China's legislation, acknowledging the offer. The nature of the purchase agreement is the reservation contract, which endows the reservation contract with the independent legal status and stipulates the responsibility of violating the reservation contract. However, there is no clear stipulation about what is an appointment contract and what its effect is, which has set off another round of discussion on the reservation contract in academic circles. How to distinguish the reservation contract from this contract and the validity of the reservation contract is still a difficult point in judicial practice. Therefore, it is necessary to define the concept and characteristics of the reservation contract, to find the standard to distinguish the reservation contract from this contract, and to explore the validity of the reservation contract on the basis of the classification of the reservation contract. Under the civil law system and the common law system, the concept of reservation has a substantial difference. Chinese scholars define the reservation as "contract of contract in the future". From the theoretical point of view, there is a significant difference between the contract of appointment and the contract. In practice, it is difficult to distinguish the appointment contract from the contract. The core criterion of distinguishing the contract of appointment from the contract of this contract lies in the expression of the true intention of the parties. It is impossible to distinguish the contract of appointment from the contract of this contract precisely from the completeness of the contents, and to abide by the principle of "dubious agreement". When it is impossible to determine whether the contract is an appointment contract or this contract, it is considered to be a contract, otherwise it would be contrary to the autonomy of the parties. According to the classification of the American scholar, Mr. Farnsworth, according to the main terms of this contract, Chinese scholars divide the reservation contract into two categories: "the reservation that must be concluded" and "the reservation which must be negotiated". The "main clause" should be a clause that determines the type and nature of the contract, not limited to the parties, the subject matter and the quantity. Based on the different types of reservation, the "content decision" should be adopted in the validity of the reservation: the reservation contract with the main terms of this contract has the effect that it must be concluded, and the parties have the obligation to conclude this contract; An appointment contract which does not have the main terms of this contract shall only have the effect of negotiation, and the parties shall have the obligation to negotiate in good faith for the conclusion of this contract. In terms of the understanding and application of Article 36 of contract Law, "one party has performed the main obligation" should be strictly defined as that one party has fulfilled all principal payment obligations, so that the actual performance of the act can remedy the deficiency of written form.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.6

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