国际商事合同的特意待定条款研究

发布时间：2018-07-05 08:17

本文选题：国际商事合同 + 合同法　；参考：《西南政法大学》2006年硕士论文

【摘要】：国际商事交易中，由于某些合同条款根据其性质只能在以后决定，以及时间紧迫、资讯欠缺、市场波动等客观原因，加之当事人降低交易风险、维持长期交易关系等主观考虑，意图订立合同的当事人各方常常会“不能或不愿”就一个或多个合同条款在订立合同当时做出决定，而有意将其留待进一步谈判商定或由第三人确定，这种情况在国际长期交易中尤为常见。这种将合同条款特意待定的情形与当事人在谈判中未考虑周全而导致的合同遗漏、约定不明以及无实质合同内容的意向性协议都有着本质的不同。对特意待定条款的法律适用和法律规制涉及到对传统合同成立制度的突破。因为根据传统民商法理论，合同需要具备某些主要条款而满足内容明确具体的要求，才能被视作是成立的。所以，目前多数国家的国内法和cIsG都规定合同需要具备某些主要条款才能成立，，而对于特意待定的合同条款是否不会影响合同的成立则存在怀疑，尤其是当这些条款被法律认为是合同主要条款时。但随着国际商事交易日益广泛而深入的发展，以美国《统一商法典》为代表的诸多国家的国内法开始击破坚冰，承认或附条件地承认这类条款的效力，即在合同主要条款的认定上采“意定论”或者“意定与法定结合论”，只要当事人各方事实上都愿意立即受合同的约束，并明确地表达出该意思，合同中也存在补缺的合理方法，特意待定条款的存在就不会妨碍合同的成立。有鉴于此，国际统一私法协会于1994年起草通过的《国际商事合同通则》在国际法的层面上，第一次对特意待定条款进行了革命性的阐释与规定，明确了这类条款的构成，并承认含这种条款的国际商事合同的成立。该规定不仅大胆突破和创新了传统民商法理论，更改变了国际商事示范法与国际商事实践脱节而导致大量交易被认定不成立或无效，严重影响当事人对合同的合理预期的状况，有利于在合同关系相对稳定的基础上最大程度发扬契约自由精神，维护交易安全和提高交易效率，从而促进国际商事交易的繁荣发展。本文正是以《国际商事合同通则》的规定为基点，参照其他的国际法与国内法的相关规定和实践，研究了国际商事合同中特意待定条款的含义与成因，并从合同合意、合同主要条款、待定条款的确定以及与相关合同制度的关系等方面分析了特意
[Abstract]:In international commercial transactions, because certain contractual terms can only be decided in the future according to their nature, as well as objective reasons such as time constraint, lack of information, market fluctuations, and subjective considerations such as reducing transaction risks and maintaining long-term trading relations, The parties intending to enter into a contract will often "be unable or unwilling" to decide on one or more of the terms of the contract at the time of the conclusion of the contract, with the intention of leaving it to further negotiation or determination by a third party, This is particularly common in international long-term trading. The situation that the terms of the contract are specially to be determined is essentially different from the agreement of intent which is caused by the parties' failure to consider the contract in the negotiation, the unclear agreement and the lack of substantial contract content. The application and regulation of the special pending clause involve the breakthrough of the traditional contract formation system. Because according to the traditional civil and commercial law theory, the contract needs to have some main clauses and meet the specific requirements of the content, in order to be considered to be established. Therefore, at present, the domestic laws of most countries and the cIsg stipulate that the contract needs to have certain main clauses in order to be established, and there are doubts as to whether the specially pending terms of the contract will not affect the formation of the contract. Especially when these terms are considered by law to be the principal terms of the contract. However, with the development of international commercial transactions, the domestic laws of many countries, represented by the United States Commercial Code, began to break the ice and recognize the validity of such clauses, That is to say, if the parties concerned are in fact willing to be bound by the contract immediately and express this meaning clearly, they adopt the "definite conclusion" or "the theory of the combination of the will and the law" in the determination of the main terms of the contract, so long as the parties concerned are willing to be bound immediately by the contract. There is also a reasonable way to fill in the contract, and the existence of a specific clause will not hinder the establishment of the contract. In view of this, the principles of International Commercial contracts, drafted and adopted by the International Institute for the Unification of Private Law (Unidroit) in 1994, for the first time, in the context of international law, have carried out a revolutionary interpretation and regulation of purpose-to-be clauses, clarifying the composition of such clauses, And to recognize the formation of an international commercial contract containing such a clause. This provision not only boldly breaks through and innovates the traditional theory of civil and commercial law, but also changes the disconnection between the International Commercial Model Law and international commercial practice, resulting in a large number of transactions being found to be invalid or invalid, which seriously affects the reasonable expectations of the parties to the contract. It is beneficial to promote the spirit of freedom of contract on the basis of relatively stable contractual relationship, to maintain the security of transactions and to improve the efficiency of transactions, thus promoting the prosperity and development of international commercial transactions. Based on the provisions of the General principles of International Commercial contracts, and referring to the relevant provisions and practices of other international and domestic laws, this paper studies the meaning and causes of the purposeful provisions in international commercial contracts, and from the point of view of the agreement of the contract, The main terms of the contract, the determination of the terms to be decided and the relationship with the relevant contract system are analyzed in detail.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D997.1

【引证文献】