【作者】 李洪建；

【导师】 赵惊涛；

【作者基本信息】 吉林大学 ， 法律， 2005， 硕士

【摘要】 我国《合同法》颁布实施以后,在合同法中对缔约过失责制度做了较为明确的规定,缔约过失责任作为一项独立的债权制度,它的确立对维护缔约过程中双方当事人的利益具有十分重要的意义。从我国《民法通则》及《合同法》对缔约过失责任的相关规定来看,缔约过失责任作为一项制度已写入其中,但对缔约过失责任的适用范围、适用程度、赔偿标准等没作具体规定。笔者以此为切入点,对这些问题加以研究,使缔约过失责任制度在维护整个市场交易秩序,创造一个公平、公正、有序的社会状态,能够发挥其更加积极的作用。更多还原

【Abstract】 The paper, combining the working situation, systematically takes the theoretically analytical study on the system of the default responsibility in signing a treaty. Proceeding with the influence of the independent civil responsibility for the default in signing a treaty, it expounds in detail the definition, characteristics and the constitutive requirements of the default responsibility in signing a treaty. From the analysis of its essence, it illustrates the relationships and differences between the default responsibility in signing a treaty and other civil responsibilities such as tort liability and responsibility for the breach of contract, etc., establishing theoretical basis for determining correctly in practice the application of such a system of the default responsibility in signing a treaty. From the classification of the legal formation and the types of the default responsibility in signing a treaty, it may help us have a deep and clear recognition and understanding for the civil responsibility of the default in signing a treaty more concretely and particularly, and increase the maneuverability and applicability, making this system exert its due legal functions more sufficiently. The system of the default responsibility in signing a treaty is a kind of embodied civil system on the basis of the principle of honesty and credit. In order for the people not to lead to the suffering of loss of the other side because of the breach of the good faith behavior of the one side in the exchange, one must at any time pay attention to whether his or her behavior is the behavior of the breach of good faith such as cheat, which brings the intrinsic conflict and contradiction with the core contract principle of freedom as the contract system in the situation of market economy. It demands the leading of such value conflict, and requires how to protect the loss of the party’s faith in interest better while maintaining the contract freedom, sufficiently embodying the spirit of maintaining the contract law. This paper discusses the relationship between the two, enables them to get coordination and complement from the conflict and contradiction, and reaches a kind of mutually dynamic balance and interaction on the basis of independently exerting their own functions, taking due effect in such aspects as maintaining exchange security, improving economic efficiency and fostering social progress. The system of default in signing a treaty has had great influence and effects as soon as it came into being. However, because it is not so perfect in theory and lacks practical experience, at present this system is far from being perfection both in the respect of legislation and judicature. The writer makes the discussion about the application of the default responsibility in signing a treaty in judicature practice and about the construction and perfection of this system in legislature, hoping that the research on the system can do good to the legislation and judicature practice. The paper has four chapters. Chapter I is an overview of the default in signing a treaty. It includes the following four parts. The first part gives the production and influence of the theory of the default in signing a treaty. Previously in the Roman law, there came the concept of one side encumbered with the obligation of careful attention to the other side in the process of signing a treaty, which is the bud of the responsibility system of signing a treaty. It can be inferred from it that the compensation concept of faith in interest has existed in Roman law, though it had less cases and narrower applicable scopes. But by and large the Roman law had no integral system of the previous contract obligations and default responsibility of signing a treaty. In 1861 Jhering published an article with the title of Default in Signing a Treaty---Damaging Compensation for the Invalid and Imperfect Contract in Jhering Law Yearly edited by him, expanding the explanation of the Roman law which is one of the origins in German general law and extensively acknowledging compensation for faith in interest. The second part talks about the definition, characteristics and the constitutive requirements of the default responsibility in signing a treaty, including: 1. the definition of the default responsibility in signing a treaty, which means that in the process of signing a treaty, one side of the party violates deliberately and by fault the previous contract obligation i.e. principle of honesty and credit, and causes loss to the other side, bearing the civil responsibility by law; 2. characteristics of the default responsibility in signing a treaty. The paper argues that the characteristics of the defaultresponsibility in signing a treaty should include the following: ⑴the default responsibility in signing a treaty is the civil responsibility produced in the process of signing a treaty. ⑵the default responsibility in signing a treaty is the civil responsibility on the basis of the principle of the honesty and credit of the civil law. ⑶the default responsibility in signing a treaty protects the obligees’faith in interests, but not fulfils their obligations. 3. the constitutive requirements of the default responsibility in signing a treaty: ⑴the party signing a treaty violates the previous contract obligation; ⑵the relative party signing a treaty is in loss; ⑶the party who violates the previous contract obligation has fault. 4. There is a causal relationship between the fault and the loss. The third part analyses the quality of the default responsibility in signing a treaty, including: 1. The default responsibility in signing a treaty is the independent civil responsibility, 2. the default responsibility in signing a treaty and the violation responsibility, 3. the default responsibility in signing a treaty and pirate responsibility. Chapter II discusses the law form and the types of the default responsibility in signing a treaty. It includes: 1. the law form of the default responsibility in signing a treaty; 2. the types of the default responsibility in signing a treaty, including: ⑴making a contract and negotiating viciously; ⑵hiding deliberately the important truth in relation to making a contract or providing false conditions; ⑶revealing or employing wrongly the business secrets; ⑷other behaviors of violating the principle of honesty and credit; ⑸the violation of compelling obligation of making a contract; ⑹having no right to deputize. Chapter III deals with the interaction between the default responsibility in signing a treaty and the contract principle of freedom. It is made up of two parts. Part one talks about the conflict between the System of the Default Responsibility in Signing a Treaty and the contract principle of freedom, including: 1. the social factors of triggering the conflict; 2. the manifestation of the conflict. Part two is about the coordination between the System of the Default Responsibility in Signing a Treaty and the contract principle of freedom, including: 1. the necessity and the possibility of the conflict and the coordination; 2. the mode of the conflict and the coordination.Chapter IV gives suggestions on the perfection of the system of the default responsibility in signing a treaty. It is composed of the following two parts. One is the application of the system of the default responsibility in signing a treaty in the judicature practice, including: 1. the problem of defining the default responsibility in signing a treaty; 2. the problem of defining the compensation scopes of the default responsibility in signing a treaty; 3. the problem of defining the compensation bound; 4. the bearing mode of the default responsibility in signing a treaty. The other part is about the construction of perfecting the system of the default responsibility in signing a treaty. On the basis of the integral analysis of the system of the default responsibility in signing a treaty, it proposes the construction to perfect the system of the default responsibility in signing a treaty, which is the core content of this paper and also the emphasis of the study.更多还原