预约合同的违约责任研究

Research on Default Liability of Pre-contract

我国现行法缺乏预约合同的系统规定,有关预约合同的违约责任认定也未在学界与实务界达成一致认同。从适应我国现有法治环境并提出合理法制构建的角度出发,选取"主客观相结合说"为预约合同的理论基础,对预约合同的内涵与预约合同的违约责任进行讨论。在预约合同已约定违约责任的情况下,违约责任的承担方式应当依照合同规定;在没有明确违约责任承担的情况下,法官应当从主观层面和客观层面两个层次进行分析从而明确预约合同的效力进而判定违约责任的承担。

At present, China's current law does not make a systematic provision for the pre-contract, and the determination of the liability for breach of contract for the appointment contract has not been agreed upon by the academic and practical sessions. From the perspective of adapting to the existing rule of law environment in China and proposing a reasonable legal system, this paper selects the combination of subjective and objective theory as the theoretical basis of the pre-contract, and discusses the connotation of the pre-contract and the liability for breach of contract in the pre-contract. In the case that the pre-contract has already stipulated the liability for breach of contract, the liability for breach of contract shall be in accordance with the contract;in the absence of a clear liability for breach of contract, the judge shall analyze the subjective and objective levels to clarify the validity of the contract, then determine the burden of liability for breach of contract.