现实基础下的合同法归责原则

The Principle of the Imputation of the Contract Law Based on the Reality

1999年《合同法》公布并实施以来,因未履行合同义务而产生的违约责任引起了学界的关注。其中,合同法的归责原则更是引起了学者的广泛探讨。从比较法上来看,合同法的归责原则呈现出国家之间的差异性,由此反映出了各个国家立法态度的不同。传统的通说将严格责任作为合同法的归责原则,学界将之认定为无过错责任。通过追溯无过错责任形成的时代背景,合同法归责原则不能仅仅以严格责任作为唯一的理论基础,确立过错和无过错的双重标准可以更好地平衡双方利益,达到定纷止争的目的。

With the promulgation and implementation of Contract Law in 1999, the liability for breach of contract arising from the failure to perform contractual obligations has attracted the attention of academic circles, among which the imputation principle of contract law has aroused extensive discussion by scholars. From the point of view of comparative law, the imputation principle of contract law shows the differences between countries, which reflects the different legislative attitudes of each country. The traditional general theory regards strict liability as the imputation principle of contract law, and the academic circles regard it as no-fault liability. By tracing back to the background of the formation of no-fault liability, the principle of imputation in contract law can not only take strict liability as the only theoretical basis, but also establish the double standard of fault and no-fault, which can better balance the interests of both sides and achieve the purpose of settling disputes and ending disputes.