试论先合同义务

A Preliminary Research into the Responsibilities of Previously Concluded Contract Obligations

先合同义务以诚实信用原则为其理论基础。它始于要约生效,终于合同生效,是对缔约信赖利益的保护。当事人违反先合同义务应当承担缔约过失责任,其适用于合同无效、被撤消、变更、解除,合同成立后生效前以及合同生效。《合同法》第42条、第43条仅规定了缔约过失责任,而未明确先合同义务,尚有进一步完善的必要。

Being the protections of the trust benefits of two parties, the previously concluded contract obligation is theoretically based on the bona-fide principle. It applies in contract invalid, contract rescinded, changed and terminat-ed , the period before it goes into effect and becomes effective. The party, who violates the previously concluded contract obligation, should bear the contracted unpremeditated responsibility. In the 42nd and 43rd provision of The Law of Con-tract , the contracted unpremeditated responsibility is stipulated, but the previously concluded contract obligation is not clearly defined and need to be further developed both in study and application.