缔约上过失责任制度研究

Research on the System of Culpa in Contrahendo

缔约上过失责任制度是在传统契约法和侵权法的缝隙中萌芽、生长的。该理论的出现有效解决了传统契约法和侵权法不能有效解决的先合同信赖利益保护的难题。自德国法学家耶林首先提出缔约上过失责任理论以来,缔约上过失责任逐渐为世界许多国家立法、司法判例学说所承认、采纳。历经100余年,缔约上过失责任从最初仅适用于合同不成立发展到适用于合同不成立、合同无效、合同被撤销以及合同有效成立等情形。

Culpa in Contrahendo system germinated and grows from traditional contract law and tort law. Nevertheless, it is able to effectively solve the difficult problems of protecting reliance interest which cannot be resolved by traditional contract law and tort law. Culpa in Contrahendo has gradually gained wide acceptance and has been adopted in many countries＇ legislation and judicial cases ever since it was put forward by German legist Rudolph yon Jhering more than a century ago. Culpa in Contrahendo originally applied only to the case of untenable contracts, evolves into a phase that it can be utilized in other areas, for instance, invalid contracts, cancelled contracts and tenable contracts.