论《合同法》中的缔约过失责任制度

On the Responsibility System in Contract Law

缔约过失责任制度由德国法学家耶林于1861年提出,其基本理论为:诚实信用原则。缔约过失责任实质上就是对损害信赖利益的赔偿。作为违约责任和侵权责任的补充,缔约责任的承担以违反先合同义务为前提,其赔偿范围以受害方信赖利益为限,以赔偿损失为主要责任形式。法律设定缔约过失责任,存在以法定责任形式弥补合同法和侵权行为法调整范围存在的前契约义务的漏洞,全面保护缔约人的合法利益,保障交易安全,维护诚实信用原则,维护市场经济秩序。

Responsibility system for contract offence was proposed by Yelin,a German legist in 1861.Its fundamental theory is the principle of honesty and credibility.Responsibility system for contract offence,in the essence,is a system of compensating for the loss of discredit.As a supplement of the bearing responsibility for violating the contract and infringing on others' legitimate rights,bearing responsibility for contract is based on violating the contract. Its compensation scope is confined to the credibility interest of the victim and the compensation for the loss is the major form of the responsibility.The law formulates the responsibility for the contract offence,to remedy the shortcomings of law of contract and law of infringement,so as to protect the legitimate rights of the both parties,and ensure the security of dealings,as well as maintain the principle of honesty and accountability,and keep the market economy in good order.