论买卖合同标的物风险负担

发布时间：2018-06-23 18:40

本文选题：标的物风险 + 风险负担　；参考：《河北大学》2013年硕士论文

【摘要】：当今社会交易频繁，但风险无处不在。买卖合同标的物风险负担对买卖双方都具有十分重要的意义。买卖合同标的物的风险是指在合同订立后由于不可归责于双方当事人的事由从而致使标的物毁损、灭失的一种不利状态，标的物的风险负担直接关系到买卖双方的利益，因此，对标的物风险负担的研究就显得更为重要。买卖合同标的物风险,是指在买卖合同中可能发生的，非因当事人意志所产生的标的物毁损、灭失的一种可能。相应的,标的物风险负担是指当标的物发生毁损、灭失后,应由谁来承担此种不利后果。本文主要对买卖合同标的物风险及风险负担的进行分析理解，了解买卖合同标的物风险负担的主要理论及风险负担规则,在标的物风险负担方面,主要存在三种理论观点。（1）合同成立主义。该理论主张标的物的风险在合同成立时转移。它的优点在于充分尊重当事人的意愿，符合私法中意思自治的原则，并且有利于督促当事人及时履行合同。而其缺陷在于过于保护出卖人的利益，对买受人的保护薄弱，因此当今大多国家都已弃用。（2）所有权主义。该理论主张以所有权的移转作为风险移转的时点。该理念在一定程度上克服了合同成立主义的缺陷，但也有一些不足。例如在出卖人无权处分的情况下，出现风险后基本这一理论无法确定风险的承担者。（3）交付主义。该理论主张，风险随着标的物的交付而转移。该理论基本解决了所有人主义的弊端，，成为当今很多普遍接受的原则,我国合同法也采用了交付主义的观点,即以标的物的交付作为标的物风险转移的一般规则。同时也对几种具体情形下买卖合同标的物的风险负担问题进行了探讨。最后，提出我国合同法在对风险负担制度方面还是存在一些不足，提出对买卖合同风险转移基本问题、买卖合同风险负担制度在违约情况下的适用包括买方违约和卖方违约时,合同风险负担规则在特定情况下的适用包括路货买卖、涉运输的买卖以及分期付款买卖进行完善。
[Abstract]:In today's society, transactions are frequent, but risks are everywhere. The risk burden of the subject matter of the contract of sale and purchase is of great significance to both the buyer and the seller. The risk of the subject matter of the contract of sale and purchase refers to a disadvantageous state in which the subject-matter is destroyed and lost because of the non-imputation of the parties after the conclusion of the contract. The risk burden of the subject-matter is directly related to the interests of both the buyer and the seller, therefore, the risk burden of the subject-matter is directly related to the interests of the seller and the buyer. It is more important to study the risk burden of the subject matter. The risk of the subject matter of the contract of sale and purchase refers to the possibility of damage and loss of the subject matter which may occur in the contract of sale and purchase and is not caused by the will of the parties. Accordingly, the risk burden of the subject matter refers to who should bear the adverse consequences when the subject matter is damaged and lost. This paper mainly analyzes and understands the risk and burden of the subject matter of the contract of sale and purchase, and understands the main theories and rules of the risk burden of the subject matter of the contract of sale and purchase, and in the aspect of the risk burden of the subject matter, There are three main theoretical viewpoints. (1) contract formation. The theory argues that the risk of the subject matter is transferred when the contract is established. Its advantage is that it fully respects the will of the parties, conforms to the principle of autonomy in private law, and helps to urge the parties to perform the contract in time. But its flaw lies in protecting the interests of the seller too much, and the protection of the buyer is weak. Therefore, most countries have abandoned it. (2) ownership doctrine. The theory advocates the transfer of ownership as the time point of risk transfer. To a certain extent, the concept overcomes the defects of contract formation, but it also has some shortcomings. For example, in the case where the seller has no right to dispose, the basic theory of risk after the occurrence of risk can not determine the bearer of the risk. (3) delivery doctrine. The theory argues that risk shifts with the delivery of the subject matter. This theory has basically solved the malpractice of the doctrine of ownership and has become a widely accepted principle. The contract law of our country also adopts the viewpoint of the doctrine of delivery, that is, taking the delivery of the subject matter as the general rule for the transfer of the risk of the subject matter. At the same time, the paper also discusses the risk burden of the subject matter of the sale contract under several specific circumstances. Finally, the author points out that there are still some deficiencies in the system of risk burden in the contract law of our country, and puts forward the basic problem of risk transfer in the contract of sale. The application of the risk burden system in the case of breach of contract includes the breach of contract by the buyer and the breach of the contract by the seller. The application of the contract risk burden rules under certain circumstances includes road sale, transport-related transaction and installment purchase and sale.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.6

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