论民法中的信赖利益赔偿

发布时间：2018-03-25 23:27

本文选题：信赖利益　切入点：信赖利益赔偿　出处：《华东政法大学》2011年硕士论文

【摘要】：社会不断发展使人与人间的交往及商品交换越来越频繁,早在我国古代已倡导“言必行,行必果”、“君子一言,驷马难追”。当今市场经济条件下,每个人通过自己的行为不同程度的参与到交易中来,这就要求每一个市场参与者在不损害他人利益和社会公共利益的前提下,获得利益,其应该符合一个诚实商人的标准。我国政府也提出应倡导建立诚信社会。传统合同法从法律精神到条文设计对合同缔结后双方的权利义务做了规定,保障了诚信原则在交易有效开始后的贯彻,但其保护范围未延伸至交易正式开始前的商谈阶段及对合同不成立、无效或被撤销等情形处理。信赖利益保护制度弥补了这一缺陷。本文共分五个组成部分,第一章为对信赖利益的内涵的阐释。对信赖利益的定义,学界素有争论主要存在损失说、利益说,笔者在结合这两种学说优缺点后提出了信赖利益的概念。信赖利益是因信赖落空,可能或已经受到损失的利益及付出的相应代价。另外信赖利益具有固有性与既存性、合理性与可预见性、依附性、善意性并因信赖而失去等特征。另外信赖利益与履行利益、维持利益、返还利益、期待利益的概念存在着不同。第二章阐述了信赖利益赔偿制度的历史渊源、理论基础、构成要件等。大陆法系的信赖利益保护起源于罗马法中的买卖诉权,后在耶林提出缔约过失责任后不断发展成熟;英美法系的信赖利益保护起源于约因主义,后富勒对信赖利益做了全面系统的阐释。信赖利益保护的发展理论上主要缘起于诚信原则、确定交易心理预期及保护交易安全。对信赖利益赔偿的构成,学界存在较多观点,笔者认为违反先合同义务、违反方存在过错、合理信赖、存在因果关系为其构成要件。第三章列举了信赖利益赔偿制度的主要适用范围,各国规定千差万别,但普遍保护的有:恶意磋商、悬赏广告、违反预备性合同、违反随附义务、要约撤销、合同撤销、无效等情形下的信赖利益保护。第四章阐述了信赖利益赔偿的范围主要包括所受损害和所失利益,笔者认为因为机会利益难以确定就将其排除在外,不利于保护交易安全,学界应对其如何确定损失进行探讨。另外关于非财产性损害,也作为信赖利益保护的对象,则易造成法官自由裁量权的滥用。同时对信赖利益赔偿的范围应利用合理预见规则、过失相抵原则、损益相抵原则加以限制,同时关于学界对信赖利益赔偿应否以履行利益为限讨论,笔者认为履行利益是对缔约人最大限度的保护,如超越这一保护范围,则使缔约人获得了缔约外地以外收获,不利于公平交易秩序的建立。最后,笔者针对我国的信赖利益保护制度进行了分析并提出了自己的完善建议。本文撰写中,笔者归纳了关于信赖利益保护的部分理论,并在此基础上提出自己的观点,不足之处,请不吝赐教。
[Abstract]:The continuous development of society makes communication between people and the commodity exchange is more and more frequent, as early as in ancient China has been advocating "words will do," resolute ", a word can never be withdrawn". Under the condition of market economy, everyone through their own behavior in different degree to participate in the transaction to benefit the premise every market participant is required without prejudice to the interests of others and social public interests, and its should be consistent with an honest businessman. The Chinese government also proposes that we should advocate the establishment of a credit society.
The traditional contract law from the legal provisions of contract to design spirit after the conclusion of the rights and obligations of both parties made provisions, safeguard the principle of good faith in the transaction after the implementation of effective, but its scope of protection does not extend to the transaction before the start of negotiations stage and the establishment of the contract invalid or revoked. The protection system of trust interest to compensate for the defects.
This paper is divided into five parts, the first chapter explains the connotation of the interests of the trust. The definition of trust interests, known as the academic debate exists mainly loss, interest, the author puts forward the concept of reliance interest in the combination of the two theories. The advantages and disadvantages of the reliance interest is because trust may fail, or has been the loss of profits and pay the corresponding cost. Has the inherent nature and existingness also trust interest, rationality and predictability, dependence, and because of the reliance and goodwill of lost features. In addition, reliance interest and performance benefits, maintain the interests, the return of interest, the concept of expectation interests there are different.
The second chapter expounds the historical origin, theoretical basis of reliance interest compensation system, elements of civil law. The protection of reliance interest originated from Rome law business in action, is put forward after the forest contracting negligence responsibility after the development of mature; the Anglo American trust interests protection originated from the doctrine of consideration, after Fuller of reliance interest do a comprehensive and systematic explanation. The development of the reliance interest protection mainly originated from the principle of good faith, determine the transaction psychological expectation and protect the safety of transactions. The compensation for reliance interest, there are many academic point of view, the author thinks that violation of pre contract obligations, in violation of the existence of fault, reasonable trust, there is a causal relationship between the elements of the.
The third chapter lists the main application scope of the trust interest compensation system, which varies widely in different countries. However, the general protection includes malicious negotiation, reward advertising, violation of the preparatory contract, violation of the accompanying obligation, cancellation of the offer, cancellation of the contract, invalidation and so on.
The fourth chapter expounds the scope of reliance interest damages including damages and lost interests. The author thinks that because the opportunity benefit is difficult to determine its excluded, is not conducive to the protection of the safety of transactions, to how to determine the academic loss were discussed. Also on the non property damage, but also as the object of the trust benefit protection. It is easy to cause the abuse of discretion of the judge. At the same time the scope of compensation for reliance interest should use the rule of reasonable foresight, the principle of contributory negligence, the principle of profit and loss balance restrictions, while on the circles on the reliance interest compensation should not be limited in performing benefit discussion, the author thinks that the performance benefit is the protection of the parties to the maximum, such as beyond the scope of protection, the parties obtain the foreign contracting outside harvest, is not conducive to the establishment of order even bargain. Finally, the author believes that Riley benefit protection system in China The analysis was carried out and the suggestions for perfection were put forward.
In this article, the author summarizes the theory of reliance interest protection, and on this basis put forward their own views, deficiencies, please generous with your criticism.

【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923.6

【参考文献】