语用预设在合同法默示条款中的体现
发布时间：2018-09-09 08:14
【摘要】： 默示条款是指作为当事人双方合意的一部分,不言自明,理应存在于合同,而没有通过合同的语言明示地表达出来的条款。默示条款是民法中一个重要的概念,因此中外法学家对于默示条款的相关问题论述颇多。其中我国学者多论及我国合同法中默示条款的运用,我国默示条款与英美法中默示条款的区分等问题,并从法学角度对我国现有默示条款提出完善和改进的建议。 对预设的研究源于哲学界,指说话人说出一句话时头脑中预先假定当然成立的命题。后来,预设成为语义学和语用学研究的基本问题之一,在国内外语言界引起广泛关注和争议。1971年,基南(Edward Keenan)首先提出语用预设这一概念。其后,语言学家从多个角度对其进行了探索,但他们的研究主要集中在阐述和应用方面,如语用预设在教学、广告、戏剧中的应用。从语用预设的角度来探讨法律中的默示条款,即把默示条款作为语用预设阐述和应用的载体,国内外鲜有研究。 语用预设与说话人和说话对象有着密切的关系,涉及说话人和受话人的态度、信念、意图等。在言语交际过程中,发话者为保证信息传递效率和交际成功,必须对受话人的知识状态作出假设,以便决定哪些信息需断言,哪些是无需用言语外化的背景信息。这种假设不一定具有真实性,但发话者必须作出,并且交际双方对此没有异议,或能为双方所接受。 本文试图通过把语用学中的语用预设理论应用于法学研究中,力图通过结合跨学科知识取得新颖的研究成果。作者从默示条款与语用预设的相似性入手,从语用学角度来解释默示条款概念,即以语用预设作为桥梁,把英美法系中完善的默示条款体系移植到我国法律体系中。 默示条款本身复杂,又因其在具体实用中的灵活性而益发艰深。在英美法中,默示条款作为商法中一直存在的一个基础性条款从一产生就备受合同双方当事人,法学界学者,法律实务人士重视,并形成了较为完整的体系。按照内容不同,默示条款被分为成文法上的默示条款,事实上的默示条款和习惯上的默示条款。 而在我国民法体系中,默示条款仅散见于合同法总则和分则中,尚未建立起完整体系。总结合同法中关于默示条款的各条具体规定,我国默示条款也可分为法律上的默示条款,事实上的默示条款与习惯上的默示条款。但在具体司法实践中,双方当事人与法律实务人士对默示条款的适用、解释和排除却没有比较固定的模式可以遵循。 本文回顾了对语用预设的三种主流解释:说话人对言语的语境所作的预设;说话人与听话人共有知识:一个言语行为所必须满足的恰当条件。作者认为这三种解释各有侧重,综合观之有助于全面理解语用预设这个复杂概念。作者尝试将语用预设的三种解释与默示条款的三个类型配对: 说话人对言语的语境所作的预没可被视为,合同一方当事人在签订合同时自认为不用明确写明,对方当事人也完全认可的合同内容。 说话人与听话人共有知识等同于默示条款中已经形成并被广泛认可的商业习惯和商事活动惯常做法。 言语行为所必须满足的恰当条件在默示条款上表现为,国家为了规范商事行为,确保合同目的实现,而在法律中具体规定并强制适用的合同条款。 作者把语用学的预设概念应用于默示条款中,试图把复杂的法学概念转化成一个简单的语言现象。这样不仅能便于合同双方对默示条款的理解,还能够让诸如法官等司法工作者从新的角度认识英美法中比较成熟的默示条款体系,有助于我国合同法中默示条款的完善。 由于国内外把语用预设应用于默示条款的研究极少,相关研究资料相对匮乏,作者期待本文能抛砖引玉,引起学界前辈和专家的关注,并希望语用学理论能更多地应用于法律理论和司法实践中,推进我国法制现代化建设。
[Abstract]:Implied clause refers to the clause which, as a part of the parties'agreement, should exist in the contract without being expressed explicitly in the language of the contract. Implied clause is an important concept in civil law. Therefore, there are many discussions on the relevant issues of the implied clause by Chinese and foreign jurists. Among them, Chinese scholars mostly talk about me. The application of implied clause in China's contract law and the distinction between implied clause and implied clause in Anglo-American law are discussed. Some suggestions are put forward to perfect and improve the existing implied clause in China from the angle of law.
The study of presupposition originates from philosophical circles, which refers to the proposition that presupposition in the speaker's mind naturally holds when he utters a sentence. Later, presupposition became one of the basic issues in semantics and pragmatics, which aroused widespread concern and controversy in foreign language circles in China. In 1971, Edward Keenan first proposed the concept of pragmatic presupposition. Linguists have explored it from many perspectives, but their research mainly focuses on its elaboration and application, such as the application of Pragmatic Presupposition in teaching, advertising and drama.
Pragmatic presupposition is closely related to the speaker and the speaker's attitudes, beliefs, intentions, etc. In verbal communication, in order to ensure the efficiency of information transmission and the success of communication, the speaker must make assumptions about the recipient's state of knowledge in order to decide which information needs to be asserted and which does not need to be spoken. This hypothesis is not necessarily true, but the speaker must make it, and there is no objection or acceptance on both sides.
This paper attempts to apply the theory of pragmatic presupposition to the study of jurisprudence in an attempt to achieve new research results by combining interdisciplinary knowledge. Starting with the similarities between implied clauses and pragmatic presuppositions, the author tries to explain the concept of implied clauses from the perspective of pragmatics, that is, to use pragmatic presupposition as a bridge to perfect the English-American legal system. The implied clause system is transplanted into our legal system.
Implied clause is complicated in itself, but also more difficult because of its flexibility in practical application. In Anglo-American law, implied clause, as a basic clause in commercial law, has been attached great importance by both parties to the contract, scholars in law circles and legal practitioners since its inception, and has formed a relatively complete system. The terms are divided into implied terms in the statute law, implied terms in fact and customary implied terms.
In China's civil law system, implied clauses are only scattered in the general and sub-clauses of the contract law, but a complete system has not yet been established. In China, there is no fixed model for the application, interpretation and exclusion of implied clauses by both parties and legal practitioners.
This paper reviews three mainstream explanations of pragmatic presupposition: the presupposition made by the speaker in the context of speech; the knowledge shared by the speaker and the hearer: the appropriate conditions that a speech act must satisfy. The three explanations for pragmatic presupposition are three types of matching:
The presupposition made by the speaker in the context of the speech can be regarded as the content of the contract which one party of the contract thinks it is not necessary to specify clearly when signing the contract and which the other party fully agrees with.
Shared knowledge between the speaker and the hearer is equivalent to the business practices and business practices that have been developed and widely accepted in the implied terms.
The appropriate conditions that speech act must satisfy are embodied in the implied clauses. In order to regulate the commercial act and ensure the realization of the contract purpose, the state specifies and enforces the contract clauses in the law.
The author applies the concept of Presupposition in pragmatics to implied clauses and tries to turn complex legal concepts into a simple linguistic phenomenon, which not only facilitates the understanding of implied clauses by both parties to the contract, but also enables judicial workers, such as judges, to understand the relatively mature implied clause system in Anglo-American law from a new perspective. The perfection of implied terms in China's contract law.
As there are few studies on the application of pragmatic presupposition to implied clauses at home and abroad, and the relevant research materials are relatively scarce, the author expects that this paper will draw the attention of scholars and experts, and hopes that pragmatics theory can be more applied to legal theory and judicial practice to promote the modernization of China's legal system.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：H030
[Abstract]:Implied clause refers to the clause which, as a part of the parties'agreement, should exist in the contract without being expressed explicitly in the language of the contract. Implied clause is an important concept in civil law. Therefore, there are many discussions on the relevant issues of the implied clause by Chinese and foreign jurists. Among them, Chinese scholars mostly talk about me. The application of implied clause in China's contract law and the distinction between implied clause and implied clause in Anglo-American law are discussed. Some suggestions are put forward to perfect and improve the existing implied clause in China from the angle of law.
The study of presupposition originates from philosophical circles, which refers to the proposition that presupposition in the speaker's mind naturally holds when he utters a sentence. Later, presupposition became one of the basic issues in semantics and pragmatics, which aroused widespread concern and controversy in foreign language circles in China. In 1971, Edward Keenan first proposed the concept of pragmatic presupposition. Linguists have explored it from many perspectives, but their research mainly focuses on its elaboration and application, such as the application of Pragmatic Presupposition in teaching, advertising and drama.
Pragmatic presupposition is closely related to the speaker and the speaker's attitudes, beliefs, intentions, etc. In verbal communication, in order to ensure the efficiency of information transmission and the success of communication, the speaker must make assumptions about the recipient's state of knowledge in order to decide which information needs to be asserted and which does not need to be spoken. This hypothesis is not necessarily true, but the speaker must make it, and there is no objection or acceptance on both sides.
This paper attempts to apply the theory of pragmatic presupposition to the study of jurisprudence in an attempt to achieve new research results by combining interdisciplinary knowledge. Starting with the similarities between implied clauses and pragmatic presuppositions, the author tries to explain the concept of implied clauses from the perspective of pragmatics, that is, to use pragmatic presupposition as a bridge to perfect the English-American legal system. The implied clause system is transplanted into our legal system.
Implied clause is complicated in itself, but also more difficult because of its flexibility in practical application. In Anglo-American law, implied clause, as a basic clause in commercial law, has been attached great importance by both parties to the contract, scholars in law circles and legal practitioners since its inception, and has formed a relatively complete system. The terms are divided into implied terms in the statute law, implied terms in fact and customary implied terms.
In China's civil law system, implied clauses are only scattered in the general and sub-clauses of the contract law, but a complete system has not yet been established. In China, there is no fixed model for the application, interpretation and exclusion of implied clauses by both parties and legal practitioners.
This paper reviews three mainstream explanations of pragmatic presupposition: the presupposition made by the speaker in the context of speech; the knowledge shared by the speaker and the hearer: the appropriate conditions that a speech act must satisfy. The three explanations for pragmatic presupposition are three types of matching:
The presupposition made by the speaker in the context of the speech can be regarded as the content of the contract which one party of the contract thinks it is not necessary to specify clearly when signing the contract and which the other party fully agrees with.
Shared knowledge between the speaker and the hearer is equivalent to the business practices and business practices that have been developed and widely accepted in the implied terms.
The appropriate conditions that speech act must satisfy are embodied in the implied clauses. In order to regulate the commercial act and ensure the realization of the contract purpose, the state specifies and enforces the contract clauses in the law.
The author applies the concept of Presupposition in pragmatics to implied clauses and tries to turn complex legal concepts into a simple linguistic phenomenon, which not only facilitates the understanding of implied clauses by both parties to the contract, but also enables judicial workers, such as judges, to understand the relatively mature implied clause system in Anglo-American law from a new perspective. The perfection of implied terms in China's contract law.
As there are few studies on the application of pragmatic presupposition to implied clauses at home and abroad, and the relevant research materials are relatively scarce, the author expects that this paper will draw the attention of scholars and experts, and hopes that pragmatics theory can be more applied to legal theory and judicial practice to promote the modernization of China's legal system.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：H030
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