自费出国留学中介服务委托合同中介方违约责任研究

发布时间：2018-03-07 23:26

本文选题：自费出国留学　切入点：留学中介机构　出处：《西南大学》2013年硕士论文　论文类型：学位论文

【摘要】：文章第一部分对自费出国留学中介服务委托合同的特殊性和中介方违约责任的特殊性进行了分析。由于自费出国留学中介服务委托合同存在当事人之间信息不对等、履行效果与委托方协作密切相关和履行具有时效性和持续性的特殊性,因此中介方违约责任在认定、承担方式上与一般的违约责任具有差异。在文章的第二部分自费出国留学中介服务委托合同中介方违约现状考察中,笔者从北大法宝等法律数据库里检索收集到的现有的关于自费出国留学中介服务委托合同纠纷的十七份判决入手,将中介方的违约行为形态分为合同未按约定实际履行和退费问题,其中合同未按约定履行又被划分为履行迟延、不完全履行和预期违约。从上述情况可以得出,在自费出国留学中介服务委托合同的履行产生的纠纷中,因中介方违约而诉诸法庭,中介方成为一审被告的情形居多。委托方在追究中介机构的违约责任时面临着举证困难、历时长、执行困难的情况。文章第三部分分析了造成中介方违约责任的根本原因在于经济利益的驱动和相关监管配套制度的缺失,直接原因来自实践中自费出国留学中介服务委托合同中格式条款的大量采用,即违约责任条款减免中介方责任,鲜有违约金的约定；退费条款侵害委托方利益,退费手续规定复杂过于苛刻；对奖学金条款约定不合理,同时少有留学中介无法达成合同目的时约定继续履行的补救方法。除此之外,还有一些其他如中介机构收取滞纳金的不合理规定。针对上述问题,文章在第四部分在无需有名化自费出国留学中介服务委托合同的基础上,从完善自费出国留学中介服务委托合同中介方违约的认定标准和承担方式、归责原则和举证责任分配、强化对自费出国留学中介服务委托合同格式条款的规制、建立中介方违约的精神损害赔偿制度四个方面对完善自费出国留学中介服务委托合同中介方违约责任进行了思考。首先,对于举证困难的问题,笔者认为应在对服务合同类型划分作进一步研究,同时对中介方的违约责任归责原则实行严格责任,据此在中介方和委托方之间进行举证责任分配。其次,面对自费出国留学中介服务委托合同的格式条款问题,从事前、事中即对格式条款的具体规制和修改、事后救济进行解决。最后在严格限制适用范围与构成要件的基础上,笔者认为我国可以建立自费出国留学中介服务委托合同中介方违约的精神损害赔偿制度。违约责任和侵权责任在一系列方面都存在着区别,当事人维护自己权益时,在两者竞合的情况下,选择通过违约责任抑或是通过侵权责任来维护自己的权益,会带来不同的救济结果。合同法理论的发展为违约责任精神损害赔偿提供了理论支撑,国外立法状况和我国司法实践的做法也说明建立我国的违约精神损害完全是可行的。
[Abstract]:The first part of the article analyzes the particularity of the agency service contract and the particularity of the intermediary party's liability for breach of contract. The performance effect is closely related to the cooperation of the client and the performance has the particularity of timeliness and continuity, so the intermediary party's liability for breach of contract is different from that of the general liability for breach of contract in the determination of the responsibility of breach of contract. In the second part of the article, the author investigates the current situation of breach of contract by the intermediary party of the agency service entrusted to study abroad at his own expense. From the legal database of Peking University and other legal databases, the author searched the existing 17 judgments concerning the disputes over the entrustment contract for the agency service for studying abroad at his own expense. The form of breach of contract by the intermediary is divided into actual performance and refund of the contract, in which the failure to perform in accordance with the contract is classified as delay of performance, incomplete performance and expected breach of contract. In the disputes arising from the implementation of the contract of entrustment of agency services for studying abroad at one's own expense, the intermediary has resorted to the court because of breach of contract by the intermediary, and the intermediary has become the defendant of the first instance. The entrusting party is faced with difficulties in proving evidence when investigating the liability of the intermediary for breach of contract. A long, difficult situation. The third part of the article analyzes the fundamental causes of the intermediary party's breach of contract liability lies in the driving of economic interests and the lack of relevant regulatory supporting system. The direct reason comes from the extensive adoption of the format clauses in the contract of agency service entrustment for studying abroad at one's own expense in practice, that is, the breach of contract liability clause relieves the intermediary party's liability, and there is little agreement on liquidated damages; the refund clause infringes on the client's interests. The procedures for refund of fees are too complicated and harsh; the terms of the scholarship are not reasonable, and there are few remedies agreed upon to continue when the agency is unable to achieve the purpose of the contract. In addition, There are some other such as intermediary agencies to collect overdue fees unreasonable provisions. In view of the above problems, the article, in part 4th, on the basis of the contract of entrustment of agency service for studying abroad at its own expense, on the basis of no need to be famous, from perfecting the standard and the way of undertaking the breach of contract by the intermediary party of the contract of entrusting the agency service to study abroad, The principle of imputation and the distribution of the burden of proof strengthen the regulation on the form of the contract of entrusting the agency service to study abroad at one's own expense. Four aspects of establishing the system of compensation for spiritual damage of intermediary party breach of contract are considered to perfect the liability of breach of contract of agent party under agency service entrustment contract of studying abroad at his own expense. First of all, for the difficult problem of proof, The author believes that the classification of service contract types should be further studied, and the principle of liability for breach of contract should be strictly responsible for the intermediary party, according to which the burden of proof should be distributed between the intermediary party and the principal party. Secondly, In the face of the problem of the formal terms of the agency service entrustment contract for studying abroad at one's own expense, the specific regulation and modification of the form clause and the relief after the event are dealt with before it is engaged. Finally, on the basis of strictly limiting the scope of application and the constitutive requirements, The author thinks that our country can establish the system of compensation for spiritual damage caused by the breach of contract by the intermediary party under the agency service entrustment contract for studying abroad at one's own expense. There are differences between the liability for breach of contract and the liability for tort in a series of respects. In the case of the two competing, choosing to protect their rights and interests through breach of contract liability or tort liability will bring different relief results. The development of contract law theory provides theoretical support for moral damage compensation for breach of contract liability. The legislative situation of foreign countries and the judicial practice of our country also show that it is feasible to establish the spirit damage of breach of contract in our country.
【学位授予单位】：西南大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.6

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