第三人缔约过失的责任性质及规则适用

The Nature of Liability and Application of Rules for the Third Party's Culpa in Contrahendo

为调整第三人缔约过失行为,《民法典合同编解释(征求意见稿)》第6条新增“合同订立中的第三人责任”,但其性质、与侵权责任的关系存疑,影响归责方式的认定。与此相关,实践中法院的相关判决中也存在归责方式混乱、责任主体范围模糊、可归责行为认定标准模糊、责任形态存疑等问题。事实上,“合同订立中的第三人责任”不同于德国法第三人缔约过失责任,其主要发挥界定第三人缔约过失行为之内涵的作用。该项责任并不独立于侵权责任而存在,但在具体认定时应当注意,以所从事法律行为中获得的信赖为交易安全提供担保而获得相对人特别信赖者,方可成为此责任主体。另外,对第三人的责任认定而言,第三人客观上须介入缔约过程并实施违背诚实信用原则的行为,主观上须意识到其行为将对他人产生影响,因果关系的认定应以“信赖”联结。

In order to adjust the third party's culpa in contrahendo,Article 6 of the Interpretation of the Contract Compilation of the Civil Code(Draft for Soliciting Opinions)adds“third party liability in contract formation”.However,there are doubts about its nature and relationship with tort liability,which affects the determination of liability attribution methods.In practice,there are also problems in the relevant judgments of the court,such as confusion in the way of attribution,ambiguity in the scope of the subject of responsibility,ambiguity in the criteria for determining attributable behavior,and doubts about the form of responsibility.In fact,the“third party liability in contract formation”is different from the third party's culpa in contrahendo.It mainly plays a role in defining the connotation of the third party's culpa in contrahendo.This liability does not exist independently of tort liability.However,in specific identification,it should be noted that only those who obtain special trust from the relative party through the trust obtained in the legal act they engage in as a guarantee for transaction security can become responsible subjects.In addition,for the determination of the responsibility of a third party,the third party objectively needs to intervene in the contracting process and engage in behaviors that violate the principle of good faith.Subjectively,the third party must be aware that their actions will have an impact on others and causality should be linked by trust.