附保护第三人作用契约研究

发布时间：2018-06-26 05:36

本文选题：附保护第三人作用契约 + 纯粹经济损失　；参考：《上海师范大学》2015年硕士论文

【摘要】：契约相对性原则自罗马法以来便为两大法系所尊崇,但随着社会的发展,该原则在实践中已渐渐显露其不足之处,于是各种突破契约相对性原则的制度相继产生。德国法上由判例发展而来的附保护第三人作用契约是挑战契约相对性原则的又一例证,其为了保护与契约有特殊关系的第三人而创立,对契约仅在当事人之间发生权利义务关系的原则做出了修正,使其具备了保护契约外第三人的作用。本文拟以法理分析、借鉴附保护第三人作用契约的必要性、比较法分析及构建我国附保护第三人作用契约的立法建议为总体思路。首先指出该契约的法理基础为依据诚信原则的附随义务。其次进一步分析借鉴该契约具有司法实践与理论上的必要性,前者分析了我国司法实践中处理该类案件时存在的各种问题,并指出附保护第三人作用契约能够解决这些问题,后者分析了该契约有利于合同相对性原则的发展、弥补为第三人利益契约对第三人权益保护的不足以及违约责任与侵权责任发挥各自的制度优势。最后在借鉴国外立法及判例的基础上,对如何构建我国附保护第三人作用契约提出立法建议,包括构成要件、适用的契约类型、契约阶段等一般法律问题的论述,同时也对请求权基础、相关诉讼问题等较特殊的法律问题进行了研究并得出结论,以期更好的保护第三人权益以及弥补我国法律对专业人士对第三人的民事责任规定的不足。
[Abstract]:The principle of relativity of contract has been respected by the two legal systems since Roman law. However, with the development of society, the principle has gradually revealed its shortcomings in practice, so various systems of breaking through the principle of relativity of contract have emerged one after another. The contract of the role of the third party, which is developed from the case law in Germany, is another example of challenging the principle of relativity of contract, which was founded to protect the third party with a special relationship with the contract. The principle that the contract only takes place between the parties is amended to protect the third party outside the contract. This article intends to use the necessity of the contract of the third party as a reference, and the comparative law to analyze and construct the legislative suggestion of the contract of the role of the third party with the protection of the third party in our country. Firstly, it points out that the legal basis of the contract is the collateral obligation based on the principle of good faith. Secondly, the author further analyzes the necessity of using the contract for reference in judicial practice and theory. The former analyzes the problems existing in handling such cases in the judicial practice of our country, and points out that the contract of protecting the third party can solve these problems. The latter analyzes that the contract is beneficial to the development of the principle of relativity of contract, and makes up for the deficiency of the protection of the rights and interests of the third party under the contract of interests of the third party and the exertion of their respective institutional advantages in the liability for breach of contract and the liability for tort. Finally, on the basis of drawing lessons from foreign legislations and precedents, the author puts forward some legislative suggestions on how to construct the contract of the role of the third party attached to the protection of the third party in our country, including the constitutive elements, the type of contract applicable, the stage of contract, and other general legal issues. At the same time, the author also studies and draws a conclusion about the special legal problems, such as the basis of claim right and the related litigation issues, in order to better protect the rights and interests of the third party and make up for the deficiency of the civil liability of the professional person to the third party in our country's law.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D913

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