试论商事合同的效率违约

发布时间：2018-07-13 08:02

【摘要】：效率违约是法经济学派代表性理论之一，作为一种特殊的责任承担形式，效率违约体现效率原则的同时，充分发挥了其配置社会资源的作用。通过合同主体效率违约行为，社会资源从利用率低的主体逐渐向利用率高的主体流动，同时合同主体能够尽快从无效率合同中脱离，为下一次交易而进行准备。但我国违约责任承担仍以继续履行为主，，如果合同效益降低，合同主体不但无法获得预期合同利益，而且仍要将一份低效益合同履行到底。于此，本文作者认为合同责任在充分弥补非违约方的损失的同时，也应使违约方尽快从无效率的合同中脱离，终止效率低的合同。然而，我国合同法在违约责任承担方面仍注重“实际履行”原则，易使合同一方被低效率的合同所累。因此，本文作者提出了合同主体利用效率违约来终止无效益合同的观点。效率违约既能在一定程度上弥补非违约方损失，也能使违约方尽快脱离无效益的合同。此外，我国合同法采用民商事合同合一的立法模式，笔者认为商事合同中运用效率违约形式为宜。商事合同自身注重经济效益的特点使得商事行为对效率原则要求较高，且商事合同作为一种经济行为，其本身伦理情感不如民事合同明显。作者在阐述对我国合同法中违约责任不足基础上，同时借鉴其他国家相关责任承担立法经验，提出了在我国采用效率违约解决低效率合同责任承担的观点，强调效率原则在责任承担部分的重要性，以更好地促进市场经济的发展。
[Abstract]:Efficiency breach of contract is one of the representative theories of the school of legal economics. As a special form of responsibility, efficiency breach of contract embodies the principle of efficiency, at the same time, it fully exerts its function of allocating social resources. Through the breach of contract subject efficiency, social resources gradually flow from the low utilization of the main body to the high utilization of the main body, at the same time, the contract subject can break away from the inefficient contract as soon as possible, so as to prepare for the next transaction. However, the main responsibility for breach of contract in China is to continue to perform. If the benefit of the contract is reduced, the main body of the contract will not only be unable to obtain the expected contract benefits, but also will still perform a low-benefit contract to the end. In this paper, the author holds that the contractual liability should make up for the loss of the non-defaulting party, and at the same time, the breaching party should be separated from the inefficient contract as soon as possible, and the inefficient contract should be terminated. However, the contract law of our country still pays attention to the principle of "actual performance" in the aspect of liability for breach of contract, which easily makes one party to the contract be tired by the inefficient contract. Therefore, the author puts forward the viewpoint that the main body of the contract uses efficiency breach to terminate the non-benefit contract. Efficiency breach of contract can not only make up for the loss of non-defaulting party to a certain extent, but also make the defaulting party break away from the non-benefit contract as soon as possible. In addition, China's contract law adopts the legislative model of the integration of civil and commercial contracts, and the author thinks that it is appropriate to use the form of efficient breach of contract in commercial contracts. The commercial contract itself pays more attention to the economic benefits, which makes the commercial behavior require higher efficiency principle, and the commercial contract is a kind of economic behavior, its own ethical emotion is not as obvious as the civil contract. On the basis of expounding the deficiency of the liability for breach of contract in the contract law of our country, and referring to the legislative experience of other countries, the author puts forward the viewpoint of adopting the efficient breach of contract to resolve the liability of the low efficiency contract in our country. The importance of efficiency principle in the responsibility is emphasized in order to promote the development of market economy.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6

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