合同类型复合的本质表现与规范适用

合同类型复合的本质是数项对价不完整的典型主给付关系达致整体性均衡,规制难点是关于各类典型合同规定的适用冲突。传统类推适用方法忽略了缔约人对关于典型合同规定的规避适用意图,特别是将导致权利义务内容的错误。合同类型复合的解释应遵循整体评价方法,整体对价关系中各项典型主给付关系所处地位与分量配置反映了构成类型复合合同的各类典型合同间的功能牵制,应依据功能牵制的结构特性确定参照适用方法。对主次牵连结构,重点是排除适用关于从属性合同类型规定中的效力及责任规定;对包含的结合结构,应明确关于手段性合同类型规定的补充适用地位;对重叠利用结构,应优先采取合同分割说,无法分割的,应适用关于与给付主要目的对应的典型合同的规定,并视情况要求缔约人补足未为之给付或返还已为之给付;对并向聚合结构,应以给付集合体为单位完成合同定性及法律适用;对等值对立结构,应确立双方的抽象给付目的并围绕其对待给付地位确定参照适用方法。

The essence of the complexity of contract types is a holistic equilibrium reached by the collaboration of several typical principal payment relationships with incomplete equivalence,and the difficulty of regulation is the conflicts of application of the provisions on various types of typical contracts.The traditional method of application by analogy ignores the contracting parties'intention to circumvent the application of the provisions on the typical contract,in particular,will lead to errors in the content of rights and obligations.Contract interpretation of the complexity of contract types should follow a holistic approach to evaluation,and the position and weight of each typical principal payment in the overall consideration relationship can reflect the functional ties between the various types of typical contracts constituting the type composite contract,and also determine the method of the norm's application by reference.For the structure of primary and secondary status,the focus should be on excluding the application of the provisions of validity and liability of the subordinate type;for the structure of the contained combination,it should be made clear that the contractual provisions of the instrumental type should be applied in a supplementary manner;for the structure of the overlapping utilisation,priority should be given to adopting the theory of contractual fragmentation,where contractual fragmentation is not possible,the provisions of the contract corresponding to the primary purpose of the payment should be applied,and the content of the payment that has not yet been made should be supplemented or the content of the payment that has already been made should be returned,depending on the specific circumstances;for concurrent aggregation structures,the contractual characterisation and legal application should be done in the unit of payment aggregates;for the structure of the equipollent opposition,the abstract purpose of payment should be established at first and the method of application by reference should be determined around their treatment of the status of payments.