论预约合同的违约救济

发布时间：2018-05-22 08:18

  本文选题：预约合同 + 效力　； 参考：《南京大学》2017年硕士论文

【摘要】：预约是当事人约定将来订立一定契约的契约,是一类非常特殊的合同。在市场经济的飞速发展,市场竞争愈演愈烈的背景下,交易双方签订预约合同,旨在借此固定交易机会,从而降低缔约的风险和成本。近些年来,随着我国经济的高速运行,市场愈发活跃,市场主体在达成交易前签订预约合同的现象也越来越普遍,预约合同已经广泛存在于诸如商品房买卖、房屋租赁、民间借贷等领域。然而,我国的立法现状却并未及时跟上现实的脚步,《合同法》中并没有关于预约合同的规定。针对实践中频繁出现的预约合同纠纷,最高人民法院于2012年出台了《买卖合同司法解释》,其中的第2条首次正式规定了预约合同,同时明确了违反预约合同约定的责任性质为违约责任,具有重要意义。不过,虽然《买卖合同司法解释》的规定确立了预约合同的独立性,但对于预约合同的法律效力和违约救济问题,司法解释并未释明,而这些问题在学界亦存争议。由于缺乏指引,各地法官在具体案件的审理中,常常会因此陷入困境,并最终产生观点各异的裁判结果。本文试图全面考察国内外立法例及各方学者的观点,并以此为基础,进一步探究预约合同的法律效力及违约救济问题,为审判实践提供帮助。任何一个理论争议都源于实际问题,学界围绕预约展开的论争也不例外。在具体分析之前,笔者首先搜集整理了各地法院新近作出的判决,从中选取了几则具有代表性的判例,并提炼出了本文所要重点论述的问题,即预约合同的法律效力、违反预约能否适用继续履行和预约违约损害赔偿的范围。针对预约合同的效力问题,学界主流观点包括"应当缔约说"、"必须磋商说"、"内容决定说"和"视为本约说"。通过分析各观点的利弊,笔者认为预约合同既是契约自由的体现,也是对诚实信用的尊重,结合域外立法实践和我国自身情况,我们应在严格界定预约的基础上坚持"应当缔约说",以此奠定预约合同制度的基础。而对于违约救济中的两个争议问题,笔者在梳理各方分歧后也阐明了立场。关于继续履行的适用,一方面,笔者倾向于否定强制履行的适用,在多数时候,强制履行不仅有违意思自治,也不符合当事人的利益,更给法院执行增加了难度;另一方面,笔者并不完全排除强制履行的违约责任形式,但仅在满足特定条件时,法院方可作出相应判决。关于损害赔偿的范围,笔者主张不要将履行利益绝对排除在外,对信赖利益损失进行赔偿时也应当考虑机会利益,同时在具体操作中,不过分强调信赖利益和履行利益的区分,而是结合案件实际,运用缔约成熟度理论解决问题。
[Abstract]:Appointment is the contract that the parties agree to conclude a certain contract in the future, is a very special kind of contract. With the rapid development of the market economy and the fierce competition in the market, the two parties sign an appointment contract in order to set the transaction opportunity and reduce the risk and cost of the contract. In recent years, with the rapid operation of our country's economy, the market is becoming more and more active, and the phenomenon that the main body of the market signs an appointment contract before the conclusion of the transaction is becoming more and more common. Private lending and other areas. However, the current legislative situation of our country has not kept up with the reality in time, and there is no stipulation on the appointment contract in contract Law. In view of the frequent disputes in practice, the Supreme people's Court issued the Judicial interpretation of the contract of Sale and purchase in 2012, in which Article 2 formally stipulated the appointment contract for the first time. At the same time, it is clear that the nature of breach of contract is liability for breach of contract, which is of great significance. However, although the stipulation of the Judicial interpretation of the contract of Sale and purchase establishes the independence of the contract of appointment, the legal effect of the contract of appointment and the remedy of breach of contract have not been explained by the judicial interpretation, and these problems are still controversial in academic circles. Due to the lack of guidance, judges everywhere often get into difficulties in the trial of specific cases, and ultimately produce different opinions of the outcome. This paper attempts to investigate the legislative cases at home and abroad and the views of scholars, and on this basis, to further explore the legal effect of the appointment contract and remedy for breach of contract, to provide assistance for the trial practice. Any theoretical dispute originates from practical problems, and the controversy about reservation is no exception. Before the concrete analysis, the author first collected and sorted out the recent judgments made by various local courts, selected several representative cases, and abstracted the key issues to be discussed in this paper, namely, the legal effect of the appointment contract. The scope of damages for breach of contract shall apply to the continued performance and appointment of breach of contract. In view of the validity of an appointment contract, the main views of academic circles include "should conclude the contract", "must negotiate", "the content decides" and "regards as this agreement". By analyzing the advantages and disadvantages of various viewpoints, the author thinks that the appointment contract is not only the embodiment of the freedom of contract, but also the respect for good faith, combined with the extraterritorial legislative practice and our own situation. We should insist on "should conclude the contract" on the basis of strictly defining the reservation, so as to lay the foundation of the reservation contract system. As for the two controversial issues in the remedy of breach of contract, the author clarifies the position after combing the differences between the parties. As for the application of continuing performance, on the one hand, the author tends to deny the application of compulsory performance. In most cases, compulsory performance is not only contrary to the autonomy of the will, but also does not accord with the interests of the parties, and makes the enforcement of the court more difficult; on the other hand, The author does not completely exclude the form of liability for breach of contract of compulsory performance, but only when the specific conditions are satisfied, the court can make the corresponding judgment. With regard to the scope of compensation for damages, the author argues that the interests of performance should not be excluded absolutely, and the opportunity interests should also be taken into account in the compensation of loss of trust interests. At the same time, the distinction between the interests of trust and the interests of performance should not be overemphasized in the specific operation. But combining the case reality, using the theory of maturity of contracting to solve the problem.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6
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本文编号：1921274