预约合同的认定标准研究

Research on the Recognition Standard of the Pre-Contract

预约合同制度发展至今已有新的使命与功能,司法实务与理论界对预约合同认定标准存在诸多不同观点。预约合同认定标准不一的关键在于意思表示与合同内容两者如何判断和取舍。通过实务层面的主客观的事实认定和法理层面的利益平衡与价值判断得出意思表示与合同内容两方面的先后适用关系和条件,即以当事人的意思表示为首要认定因素,在意思表示不清晰时再考察合同内容完备与否。

The system of the pre-contract has a new mission and function today. The recognition standard of the pre-contract has many different viewpoints in the practical and theoretic field. From these judicial cases,it can find the key point is how to judge and choose the meaning expressing and contract contents. According to the subjective and objective fact finding and benefit balance and value judgement from the law theory,it will get the precedence relationship and conditions of the meaning expressing and contract contents. That is to say the meaning expressing of parties is the first standard and if the expression is not clear,the contract contents as the second standard can be applied.