预约亦约:缔约协议的法解释论  

Preliminary Agreement as a Contract:An Interpretive Analysis

作　　者：韩世远[1] Han Shiyuan

机构地区：[1]清华大学法学院

出　　处：《环球法律评论》2024年第6期27-44,共18页Global Law Review

摘　　要：我国预约法解释论的展开应借助比较法之考据,编织相应的义理之网。预约合同的成立要求约定订立合同的义务以及本约的可确定性。基于“交易成熟度”理论,预约所生缔约义务亦可强制履行,比较法常见的做法是以生效判决代替预约义务人的意思表示,实值我国立法或司法解释参考并相应改进。违反预约的赔偿请求权基础虽可有预约违约及本约缔约过失两种路径,但相应的选择权在请求权人,裁判者应尊重其选择。预约违约赔偿可从交易整体角度参考本约的信赖利益或履行利益,原则上由原告依证明的难易选择主张,裁判者应在原告选择基础上,参考交易成熟度酌定赔偿。越过预约成立本约属特别法,应严格掌握其适用要件,在交易存在重大隐存不合意场合,如双方未能补充合意,不宜认定本约成立。The Chinese Civil Code stipulates preliminary agreements as a basic civil rule.The Judicial Interpretation of the General Provisions of the Book on Contract of the Civil Code stipulates more detailed rules on preliminary agreements.However,some issues relating to preliminary agreements still need to be addressed.This paper conducts a comparative study on preliminary agreements.It reviews Japanese law,German law,and French law on the issue of preliminary agreements,then studies preliminary agreements under Chinese Law at an interpretive level.In Chinese civil law,a preliminary agreement is a contract in nature.There are two pre-conditions for the conclusion of a preliminary agreement:an agreed duty to negotiate in good faith and the definiteness of the main contract.An agreed duty to negotiate in good faith requires parties to try their best to negotiate the main contract.This obligation does not mean the parties must sign the main contract successfully after they sign a preliminary agreement.The definiteness of the main contract means the main content of the main contract can be found in the preliminary agreement.The Judicial Interpretation of the General Provisions of the Book on Contract of the Civil Code doesn't mention the issue of specific performance of the preliminary agreement and the subsequent conclusion of the main contract.Therefore,requiring a party to follow the preliminary agreement and sign the main contract means not forcing the parties to conclude a contract but prohibiting a party from breaching good faith.A usual practice in the civil law system is using an effective judgment as a substitute for the defendant's declaration of will and the main contract is deemed to be concluded according to the terms determined by the relevant court judgment when it comes into effect.In the case of the purchase and sale of a house,if there is no house for sale,the impossibility of performance is not a justifiable reason to reject the conclusion of the main contract.At the level of relief,the relief for a preli

关 键 词：预约合同 本约 缔约协议 缔约义务 

分 类 号：D923.6[政治法律—民商法学]