效率违约理论和我国合同法制的完善

发布时间：2018-04-13 17:35

本文选题：效率违约 + 损害赔偿　；参考：《福建师范大学》2011年硕士论文

【摘要】：效率违约理论是西方经济分析法学派在新自由主义经济学说的理论基础上提出的一种全新的违约理论。该理论以效率为出发点,对合同当事人之间的违约行为进行了新的判断。该理论认为,若合同违约能给双方带来更多的收益时,这种违约就是有效率的,值得鼓励。效率违约理论自提出后受到了广泛关注,在英美法系,效率违约已被普遍接受并发展。然而,在效率违约制度在英美法系不断发展的同时,大陆法系却一直没有对其进行肯定,认为效率违约是对传统合同法理论的挑战,我国亦是如此,国内学者对效率违约的态度也是褒贬不一,尚未达成共识。但这并不能否认效率违约存在的价值,效率违约将效率从经济学领域引入合同法领域的的做法是值得肯定的。随着世界经济的发展,英美法系和大陆法系的发展呈现出不断融合的趋势。无论是经济制度,还是法律制度,各国之间的差异越来越小,在这样的环境中,我国也应当借鉴国外的优秀制度,进一步完善本国的法律制度。本文通过对效率违约的基本理论的了解,对比分析国外的相关立法,对效率违约引入我国合同法的可行性进行分析,最终提出对完善我国合同法的几点建议。
[Abstract]:The theory of efficient breach of contract is a new theory of breach of contract put forward by the Western School of Economic Analysis on the basis of the theory of neoliberal economics.Taking efficiency as the starting point, the theory makes a new judgment on the breach of contract between the parties.The theory holds that a breach of contract is efficient and encouraging if it can bring more benefits to both parties.The theory of efficient breach of contract has received extensive attention since it was put forward, and it has been widely accepted and developed in Anglo-American law system.However, while the system of efficient breach of contract develops continuously in the common law system, the civil law system has not affirmed it all the time. It is believed that the efficient breach of contract is a challenge to the traditional contract law theory, and so is the case in our country.The attitude of domestic scholars on efficiency breach of contract is also mixed, and has not yet reached a consensus.However, this does not deny the value of efficiency breach, which is worthy of recognition by introducing efficiency into the field of contract law from the field of economics.With the development of world economy, the development of Anglo-American law system and civil law system shows a trend of continuous integration.Whether it is economic system or legal system, the differences between countries are becoming smaller and smaller. In such an environment, our country should also learn from the excellent foreign system and further improve its own legal system.Through the understanding of the basic theory of efficiency breach of contract, this paper compares and analyzes the relevant legislation of foreign countries, analyzes the feasibility of introducing efficiency breach of contract into contract law of our country, and finally puts forward some suggestions to perfect the contract law of our country.
【学位授予单位】：福建师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923.6

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