论再交涉义务

发布时间：2018-12-15 06:47

【摘要】：在契约履行过程中,当履行障碍出现时,契约双方当事人并不会立即终止其契约关系,而往往会通过磋商、交涉来对契约条款进行调整以修复交易关系。此外,即使契约在履行过程没有出现履行障碍,但是如果该契约的给付内容不完全、不明确,需要在某一特定的时间点上确定契约给付内容时,契约当事人也会就该事宜进行磋商、交涉。因此,无论是在契约履行的过程中还是在债权债务关系的确定中,契约双方当事人都存在再磋商、再交涉问题,当事人在这一过程中负担的义务即再交涉义务。再交涉义务是指当一方当事人再交涉的必要性和相对方当事人再交涉的期待可能性同时成就时,根据双方当事人达成的再交涉合意,就有关契约调整、补充、变更等事宜进行再交涉的义务。然而,学者们对“再交涉义务”的内在本质有着不同见解,其根源在于学者们在一方当事人的再交涉义务和相对方当事人的承诺义务的关系问题上有着不同的观点。再交涉义务的适用范围分两种情况：一是在不完全契约中,当事人通过磋商、交涉的形式确定契约给付内容时的情形;二是当契约履行障碍时,当事人通过磋商、交涉的形式进行契约调整的情形。再交涉义务作为一项不真正义务,应在当事人的交涉过程中剥离出承诺义务,因此违反再交涉义务的当事人所要负担的法律后果应该是程序上的法律不利益,即限制或剥夺其契约调整或解除权限。再交涉义务的要件由固定要件和动态要件组成,其中固定要件包括当事人享有契约调整的权利以及该契约调整对象属于契约调整的范围。动态要件包括一方当事人的再交涉必要性和相对方当事人的再交涉期待可能性。最高人民法院法发[2009]40号司法文件确认了再交涉义务,但其没有就再交涉义务的内容、要件等要素作出详细规定。在我国,再交涉义务是被置于情事变更原则的框架下予以讨论的,显然缩小了再交涉义务的概念和适用范围。最后在讨论我国法中的再交涉义务的基础上指出其中的不足与缺陷,即我国不应将再交涉义务置于情事变更原则的框架下进行讨论。
[Abstract]:In the process of contract performance, when the performance obstacle appears, the parties to the contract will not immediately terminate their contractual relationship, but will often adjust the terms of the contract to repair the transaction relationship through negotiation and negotiation. In addition, even if the contract does not present an obstacle to performance, if the contract's payment is incomplete and unclear, it needs to be determined at a particular point in time. The parties to the contract will also negotiate and negotiate the matter. Therefore, whether in the process of performing the contract or in the determination of the relationship between creditor's rights and liabilities, the parties to the contract have the problem of renegotiation and renegotiation, and the obligation that the parties bear in this process is the obligation to negotiate again. The obligation to renegotiate means that when the necessity of renegotiation by one party and the expectation possibility of renegotiation by the other party are achieved at the same time, according to the agreement reached by the parties to renegotiate, the relevant contract shall be adjusted and supplemented. The obligation to renegotiate matters such as changes. However, scholars have different views on the intrinsic nature of "renegotiation obligation", which is rooted in the different views of scholars on the relationship between the renegotiation obligation of one party and the commitment obligation of the other party. The scope of application of renegotiation obligation can be divided into two situations: first, in incomplete contract, the parties determine the content of contract payment through consultation and negotiation; Second, when the performance of the contract obstacles, the parties through consultation, negotiation of the form of contract adjustment. As an unreal obligation, the obligation of renegotiation should be stripped out of the obligation of commitment in the process of negotiation by the parties concerned. Therefore, the legal consequences to be borne by the parties who violate the obligation of renegotiation should be procedural legal interests. Namely limits or deprives its contract adjustment or the release authority. The elements of renegotiation obligation consist of fixed elements and dynamic elements, among which the fixed elements include the rights of the parties to the contract adjustment and the object of the contract adjustment belongs to the scope of the contract adjustment. The dynamic elements include the necessity of renegotiation by one party and the possibility of expectation of renegotiation. Judicial document No. 40 issued by the Supreme people's Court [2009] confirms the obligation of re-negotiation, but it does not make detailed provisions on the contents and elements of the obligation of re-negotiation. In our country, the obligation of renegotiation is discussed under the framework of the principle of change of circumstances, which obviously reduces the concept and scope of application of the obligation of renegotiation. Finally, on the basis of discussing the obligation of renegotiation in Chinese law, the author points out the shortcomings and defects, that is, China should not place the obligation of renegotiation under the framework of the principle of circumstance change.
【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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