论预约合同的司法认定与违约救济——以《合同编通则解释》的相关规定为中心

On Judicial Recognition of Pre-contract and Remedies for Breach of It:Focus on the Relevant Provisions of the Interpretation of the General Principles of Contract Compilation

预约是交易阶段化的产物,旨在满足当事人将阶段化谈判成果予以固定并赋予其法律约束力,同时实现对未协商一致的内容保留最终的决策权,因此既区别于交易意向,也区别于本约。尽管当事人订立的是预约合同,但在当事人已经按照本约履行义务时,应认定预约合同向本约合同发生了转化。当事人一方拒绝签订本约或者在协商签订本约时因不诚信导致本约未能签订,均应承担违反预约的违约责任。为保障当事人的交易安全,对违反预约合同的救济虽然不包括继续履行,但在计算违约损害赔偿时,应由法官在信赖利益与本约的履行利益之间根据预约合同所体现的交易成熟度进行酌定,而预约合同在内容上的完备程度以及签订本约的条件的成就程度等均是认定交易成熟度应当考量的因素。

Pre-contract is a product of phased transaction,aimed at ensuring that the parties give legal binding force to the results of the phased negotiation,while retaining the final decision-making power over the content that has not been agreed upon.Therefore,it is different from both transaction intention and formal agreement.Although the parties just entered into a pre-contract,it should be deemed that the pre-contract has been transformed into formal contract when the parties have fulfilled their obligations in accordance with the formal contract.If either party refuses to sign formal agreement or fails to sign formal agreement due to dishonesty during negotiation,they shall bear the liability for breach of pre-contract.The remedies for breach of the pre-contract do not include specific performance.When calculating the compensation for breach of precontract damages,the judge should determine the maturity of the transaction reflected in the pre-contract based on the trust interest and the performance interest of formal contract.The completeness of the content of the pre-contract and the degree of achievement of the conditions for signing formal contract are all factors that should be considered in determining the maturity of the transaction.