预约合同效力与违约救济问题研究

发布时间：2018-04-30 16:16

本文选题：预约 + 本约　；参考：《郑州大学》2017年硕士论文

【摘要】：当事人基于自由意志在磋商阶段阶段订立的预约合同应当得到法律保护。判断本约或是预约的标准是当事人是否存在将来订立本约的意思表示。预约作为一种独立的制度,与意向书、本约、优先性协议、附条件合同、附期限合同存在差别,应加以区分。因为预约与本约或多或少存在时间间隔、预约的合意也仅仅是暂时的合意,预约效力学说中的“必须磋商说”与“应当缔约说”并不存在本质上的区别,都是指当事人诚信磋商以尽可能地促成本约订立的效力,当事人可以因诚信磋商而免责。预约违约责任是否包括强制缔约不能一言以蔽之,对于预约成立之时内容详尽且待磋商事项属于客观未决的预约可以适用强制缔约,因为要求的缔约义务并未超过其当初承诺范围。本约尚未缔结的情况下,法院给予预约的守约方相当于本约履行利益的救济没有充分的法理依据。预约本来就是对交易机会的固定,法院可就过错程度、可预见性规则等原则来自由裁量违约方承担包含机会利益在内的信赖利益损害赔偿责任。
[Abstract]:An appointment contract concluded by the parties at the negotiation stage on the basis of free will should be protected by law. The criterion for judging this agreement or reservation is whether the party has the intention to enter into this agreement in the future. As an independent system, there are differences between appointment and letter of intent, this agreement, priority agreement, conditional contract and term contract. Because there is a more or less time interval between the reservation and this agreement, the agreement of the reservation is only a temporary agreement, and there is no essential difference between the doctrine of "must negotiate" and the "ought to conclude" in the doctrine of the validity of the reservation. Both refer to the parties negotiating in good faith in order to promote the effectiveness of the conclusion of the cost contract as much as possible, and the parties can be exempted from liability because of the negotiation of good faith. Whether the appointment for breach of contract includes compulsory contracting cannot be said in a word, and the compulsory contracting may be applied to an appointment which is detailed at the time of establishment of the reservation and which is an objective and unresolved matter to be negotiated, Because the contractual obligation required does not exceed the scope of its original commitment. In the absence of a contract, there is no sufficient legal basis for the court to grant an appointment as a remedy for the benefit of its performance. Appointment is the fixed trading opportunity, the court may decide the breach party to bear the liability of the trust interest damages including the opportunity interest according to the principle of fault degree, predictability rule and so on.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6

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