商品房买卖预约纠纷的司法应对

发布时间：2018-06-23 05:42

本文选题：商品房买卖 + 预约　；参考：《浙江大学》2014年硕士论文

【摘要】：我国商品房买卖司法实践中大量存在认购书、意向书等形式的预约。由于现行法律对此种类型的合同规范尚不完善,司法实践中引发的纠纷不断。笔者采取实证研究的方法,对商品房买卖预约纠纷实践中典型的纠纷类型化。根据司法裁判的简要回溯和法官裁判不统一的四种具体情形,总结了商品房买卖预约纠纷的司法立场。并且,针对预约基础理论和各国立法例,从预约的内涵、性质、分类,到预约的历史考察以及世界各国三种立法例,认为预约相较于本约具备独立的法律地位,为一种独立的合同形式,但其法律效力存有“必须磋商说”、“应当缔结说”和“内容决定说”之争。在此之上,对商品房买卖预约起源的理论基础、预约的经济功能、司法视角下预约保护的利益以及预约的法律效力进行了反思。可以说,合同自由原则和诚实信用原则积极影响了预约的产生,而缔约过失和允诺禁反言原则对违反预约需要承担责任的提供了理论依据。基于经济效益理论,预约区别于本约存有其自身的价值追求,二者的经济功能不同,司法应当对预约下的利益给予保护。对于“必须磋商说”、“应当缔约说”和“内容决定说”,笔者尝试运用利益衡量的方法,得出“内容决定说”更应该得到支持的结论。最后,就商品房买卖预约纠纷中裁判不统一的情形,应当在明确预约和本约有所区分的前提下,正确理解《商品房买卖司法解释》第5条,统一预约和本约的判定标准。对于违反预约的责任性质应当明确属于违约责任,其责任范围的大小应当考虑赔偿机会利益的损失。同时,根据预约条款的完备程度来判断预约可否继续履行,对于尚未达成一致的条款应具体分析其性质而给予当事人意思自治的权利或者由法官判断继续履行。
[Abstract]:In the judicial practice of buying and selling commercial houses in China, there are a large number of subscription books, letters of intent and so on. Because the current law is not perfect to this kind of contract norm, the disputes caused by judicial practice are incessant. The author adopts the method of empirical research to classify the typical disputes in the practice of commercial housing purchase and sale. According to the brief retrospect of the judicial decision and the four concrete cases of the judge's disunity, this paper sums up the judicial stand of the reservation dispute of the commercial housing purchase and sale. Moreover, in view of the basic theory of reservation and the legislation of various countries, from the connotation, nature, classification of reservation, to the historical investigation of reservation and three kinds of legislation of countries in the world, the author thinks that the reservation has an independent legal status compared with this one. It is an independent form of contract, but its legal effect has the argument of "must negotiate", "should conclude" and "content decision". On this basis, this paper reflects on the theoretical basis of the origin of the reservation, the economic function of the reservation, the interests protected by the reservation from the judicial perspective and the legal effect of the reservation. It can be said that the principle of freedom of contract and the principle of good faith have a positive impact on the formation of appointment, while the principle of fault in concluding a contract and the principle of estoppel of promise provide a theoretical basis for the liability for breach of appointment. Based on the economic benefit theory, the reservation is different from this contract in its own pursuit of value, the economic functions of the two are different, the judicial system should protect the interests under the reservation. For "must negotiate", "should conclude" and "content decision", the author tries to use the method of interest measurement to draw the conclusion that "content decision" should be supported. Finally, with regard to the situation that the referee is not unified in the dispute of the sale of commercial housing, we should correctly understand Article 5 of the Judicial interpretation of the purchase and purchase of Commodity Housing on the premise of making a clear distinction between the reservation and the contract, and unify the judgment standard of the reservation and this contract. The nature of liability for breach of appointment should be defined as liability for breach of contract, and the scope of liability should consider compensation for loss of opportunity. At the same time, according to the completeness of the reservation clause to judge whether the reservation can continue to perform, for the terms that have not been agreed upon, it should be specific analysis of its nature and give the right to party autonomy or the judge to continue to perform.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923.6;D926

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