论婚约及其解除之损害赔偿

Analysis on the Engagement and the Damages Caused by its Dissolution

《民法典》对婚约未作任何规定,但司法实践中有大量的婚约财产纠纷,除彩礼返还争议外,其他争议如信赖将缔结婚姻而支出的费用应如何分摊,事实上无法可依。审判实务中,法官往往诉诸公平原则、公平责任等法律技术,但这些路径并不恰当。从解决现实纠纷、延续立法传统、顺应社会婚俗、借鉴比较法经验等方面考虑,应将婚约纳入民法调整范围。婚约的应然性质为准身份契约,婚约所涉义务不可诉请强制履行或请求替代履行之损害赔偿。在解释论上,解除婚约之损害赔偿只能诉诸公平责任、过错侵权责任或缔约过失责任;在立法论上,违反婚约应承担违约责任。在一方无理由解除婚约或因过错导致他方解除婚约时,该方应承担信赖利益的损害赔偿;赔偿范围为他方因信赖婚姻会缔结而支出的合理费用与负担的债务,以及作财产或职业上处置而遭受的损害,原则上不包括精神损害。

Despite there is no stipulation about the engagement in the Civil Code, there are a large number of engagement property disputes in judicial practice. In addition to the bride price refund dispute, there is no law to resolve other disputes, such as how to share the expenses due to the trust that the marriage will be concluded. In judicial practice, judges often resort to legal techniques such as principle of fairness and equitable liability, but these approaches are not appropriate. From the perspectives of solving practical disputes, continuing the legislative tradition, conforming to social marriage customs and learning from the experience of comparative law, the engagement should be included in the civil law. The due nature of the engagement is a quasi-identity contract, and the obligations involved in the engagement cannot be claimed for compulsory performance or compensation for damages of substitute performance. In terms of interpretation, to solve the disputes over damages caused by the dissolution of the engagement, the judge can only resort to the equitable liability, liability for tort or culpa in contrahendo. In the terms of legislation, the breach of engagement should bear the liability for breach of contract. If one party unjustifiably breaks the engagement or causes the other party to dissolves the engagement due to fault, this party should bear the responsibility for damages of the trust interest. The compensation shall cover the reasonable expenses and liabilities due to the trust that the marriage will be concluded, as well as the damage suffered from the disposition of property or occupation, excluding in principle mental damages.