论缔约过失责任之构成要件

On the elements of liability for negligence in contracting

自耶林创建缔约过失责任理论以来,学界纷争一直持续,司法实践难以统一。缔约过失责任是当事人具有可归责事由违反先合同义务致另一方当事人的损失所应承担的民事责任。其构成要件一般包括四个方面:当事人一方违反先合同义务;违反先合同义务具有可归责性;相对人有利益损失;违反先合同义务与相对人损失间存在因果关系。但对缔约过失责任构成要件的解析,既要符合耶林学说之精神实质,更要反映经济社会发展之时代特征,赋予其新内涵。

Since Jhering created the theory of Culpa, the academic controversy has been continued, leading to the judicial practice unified. The liability for negligence, including contracts, is the civil liability of one party of a contract who breaches pre-contractual obligations for some attributable reasons, resulting in damages of the other party. Its constituents generally include the following four aspects： one party breaches pre-contractual obligations, the one party has his or her attributable reasons, the other party suffered losses, between the later two there exist causal relationships. When we analyze the requirements of Culpa, however, we should not only comply with ＂the essence of the doctrine of Jhering, but also reflect the features of The Times of economic and social development, especially, and give it new connotation.