论缔约过失责任法律制度

On the Legal System of Liability for Wrongs in Conclusion of Contracts

缔约过失责任是德国法学家耶林提出的一种特殊责任制度,被誉为法学上的发现,对各国立法和判例产生了极其深远的影响。我国早期民事立法及新合同法对此也作出了相应规定。关于缔约过失责任的概念,目前理论界争议较大,大致有四种学说:侵权行为说、法律行为说、法律规定说、诚实信用说。缔约过失责任的理论基础、构成要件、责任类型等不同于违约责任和侵权责任,它们之间存在明显的区别。

The theory of liability for wrongs in conclusion of contracts was first put forward by Jhering, a famous German jurist,in1861, which is regarded as a discovery of the science of laws and has great influence on the later legislations of many countries. At present there are four different doctrines about the theory. Three kinds of liabilities for wrongs in conclusion of contracts have been stipulated in ' Contracts Law' . The liability differs, in many ways, from liabilities for breach of Contracts and infringement of rights.