合同中締約過(guò)失責(zé)任的產(chǎn)生和發(fā)展-外文翻譯

1、The Emergence and Development of Contracting Fault LiabilityAbstract: The Contracting Fault Liability as a civil compensation liability occurs when one party violates the precontractual obligations subject to bona fide principle and then the other party is to be entitled to the compensation for the

2、damages to the reliance on its interest suffered thereby. The system of the contracting fault liability was put forward by a German jurist and was famed an important find of jurisprudence. Reviewing the history of liability for negligence in contracting, we can finds that case and theory play a very

3、 important role in its development.Introduction: In traditional contract law, contract rights and obligations between the parties is only kept in the establishment and performance of contracts completed period. If the contractual relationship did not exist or not set up, it implies no responsibility

4、. That is,” no contracts, no responsibility. So in the contract, if one sides contract is not set up, which implies the fact that there have to protect the interested parties who loss something. With this situation, the fault liability was come out. This article focuses on it.The Emergence and devel

5、opment of contracting fault liability:It is generally agreed that the concept of fault liability have already came out in Rome law. There is a famous saying: contract is no longer the subject of the payment is void. At this point, if the buyer is in good faith and without negligence, in order to pro

6、tect the security of transactions, in exceptional circumstances the buyer the right to appeal based on buyers to good faith litigation, the request to the seller for compensation for losses suffered due to an invalid contract. However, before the formation of the ancient Roman law, there is no contr

7、actual obligation and Culpa complete system. The complete theoretical and institutional systematization of things was established in the modern times. It is proposed by the German jurist Garling. In the year of 1861, Jelling published in Volume IV of Contracting on the fault- Contract null and void

8、and damages before the establishment of the harmed in his “Garling doctrine Annual Report”. In the article, he pointed out that Germany took too much emphasis on the will of the general common law and the subjective will of the importance of party desired, but not enough to meet the business needs.

9、For example, offer or commitment is failed to convey, the person or the subject will affect the effectiveness of the contract, if the contract due to the fault of one of the parties and not established, the party at fault should the other party because of reliance on the establishment of contract lo

10、sses liability? Garling replied: the people who engaged in contracts were concluded, from a contractual obligation to trade outside the scope of the negative into a positive obligation on the lease area, which thus assume the primary obligation lies in contracting to be fulfilling the necessary atte

11、ntion. Protected by law, not just an existing contractual relationship, the contractual relationship is taking place should be included; otherwise the lease deal will be out, and out of protection. The parties created a contractual obligation, if such an effect because of legal obstacles to be exclu

12、ded when the obligation will be to produce damages. There will be a so-called contract is invalid persons, refers only to fulfill effect does not occur, non - that he did not have any effect. In a brief, the parties make the contracts meaningless because of their own reasons do not contract who beli

13、eved its contractual right for the effective establishment of the relative should pay for the damage. 1 This is the Garling s Contracting negligence theory, it is known as the Law on the findings. Since the Jelling theory put forward the theory of contracting negligence, it is seriously concerned by

14、 the world. And then it carried out more extensive and in-depth and systematic research and it also increasingly by some countries, legislation or judicial practice to accept them. In the “German Civil Code times, the scholars begin to discuss it on the question of fault on the parties. Most of the

15、drafters believes that contracting negligence theory of liability is not easy to accept and prescribed by a general principle, only in exceptional circumstances should be recognized. So, in 1900 the German Civil Code, the drafters of the treaty on the fault is not fully accepted the theory, only in

16、the wrong to withdraw (122), the right agent (179), from the outset the objective can not (307), etc. is limited adopted within the framework of this view, but the contracting negligence theory in the German judicial practice and doctrine have been developed rapidly and gradually formed a fine, larg

17、e, complex and wide scope of application, the establishment of a generalized principle.In Japan, the jurisprudence has also acknowledged the responsibility of contracting negligence theory. In Japans Case to find the bases of the fault liability from the trust and the city real credit principle, so

18、the scope of this responsibility extended to the following areas: (1) Unable to perform the contract from the beginning so that the contract does not hold or invalid; (2) The contract shall only remain in the preparation stage of negotiation; (3) Contract effective establishment of the situation. Co

19、ntracting fault liability is an effective establishment of the situation of enough to matter if the targets were flawed and contractor who breach of contract.In Greece and Italy, contracting fault liability was concerned as a general principle. According to Greek Civil Code Article 197, it stipulate

20、s that: When consultations on the occasion of the conclusion of contracts, the parties should have obligation to follow the trading practices and good faith. The Italian Civil Code section 1337 provides a pre-negotiations and contractual responsibility, both in the process of negotiation and conclus

21、ion of contracts, the parties should be based on the principles of good faith.In France, contracting fault liability has not been incorporated into the Civil Code. When a similar situation occurs, it will be handled in accordance with the tort law. But in recent years, the judicial practice shows th

22、at the contract law principles of contract is invalid or does not hold the party at fault when the responsibility to prosecute cases occur from time to time, such as the preparation protocol protection. In the English and American laws, there is no contracting fault liability concept in history. But

23、 after Mansfield incorporated duty of good faith into their laws with widespread support since 1933, the common law admits contracting fault liability. In 1933, Fuller, scholar in the US, comes out with amends when damages trust in the contract laws published in the “Yale Law Review”. The paper was

24、discussed in detail with the expected benefits, trust interests and the performance benefits. The United States Uniform Commercial Code, also confirmed the duty of good faith that is loyal to the fact. In there laws, the trust interests of the parties to the contract is a result of the trust each ot

25、hers promise to pay the price or charges. Can not go back on the promise is their laws to protect the interests of a principle of trust. Their laws requires the court in establishing trust in the interests of the compensation promised to people without regard to how the subjective meaning. Only cons

26、ider the defendant as a promise, whether we can make a reasonable person to become trusted.CONCLUSION:We may draw a conclusion that contracting fault liability has become a integrated system according to the regulations made in many countries for it based on Garlings original theory. Compared with t

27、he original theory of Garling , there are a few developments. The first is the expansion of the scope. Contracting fault liability can not only be used for the beginning of contracting but also be applicable to the contract are recognized as invalid and be revoked when in breach of its offer to a va

28、lid offer and should bear responsibility for the case of contracting. Second, Garlings theory thinks the responsibility for contracting negligence claims based on contractual obligations and fails to point out the strict differences between contractual liability and contracting liability. But the mo

29、dern jurisprudence generally consider contracting responsibility is an independent responsibility and has strict differences with contractual and tortious responsibility. Third, most countries have accepted the responsibility of contracting fault liability theory, which the law or case law has clear

30、ly defined and reflected.Fourth, contracting fault liabilitys fault not only includes “not pay attention fault”, but also contains “on purpose”. 合同中締約過(guò)失責(zé)任的產(chǎn)生和發(fā)展【摘要】締約過(guò)失責(zé)任是在訂立合同過(guò)程中締約一方當(dāng)事人因違反依誠(chéng)實(shí)信用原則所應(yīng)承擔(dān)的先合同義務(wù)而造成另一方當(dāng)事人信賴(lài)?yán)鎿p失時(shí)所應(yīng)承擔(dān)的民事賠償責(zé)任。締約過(guò)失責(zé)任制度是由德國(guó)法學(xué)家耶林提出并被譽(yù)為法學(xué)上的重要發(fā)現(xiàn),對(duì)各國(guó)的立法和判例法都產(chǎn)生了深遠(yuǎn)的影響?；仡櫨喖s過(guò)失責(zé)任理論發(fā)展的歷

31、史、判例、學(xué)說(shuō)在締約過(guò)失責(zé)任理論的發(fā)展中扮演了極為重要的角色。介紹在傳統(tǒng)的合同法中，合同當(dāng)事人之間權(quán)利義務(wù)關(guān)系僅僅存于合同的成立和履行完畢這一段時(shí)間。如果合同關(guān)系尚不存在或未成立，就無(wú)所謂責(zé)任可言。即有契約才有責(zé)任，無(wú)契約便無(wú)責(zé)任，因此，在合同因當(dāng)事人一方締約時(shí)的過(guò)失不成立或無(wú)效時(shí)，如何保護(hù)損失的另一方當(dāng)事人的利益，就成為違約責(zé)任不能不解決的問(wèn)題，締約過(guò)失責(zé)任就是為了解決這一問(wèn)題而產(chǎn)生的。本文正是對(duì)締約過(guò)失責(zé)任的產(chǎn)生與發(fā)展進(jìn)行的闡述。締約過(guò)失責(zé)任的的產(chǎn)生與發(fā)展通說(shuō)認(rèn)為，在羅馬法上，締約過(guò)失責(zé)任的觀(guān)念已經(jīng)出現(xiàn)。羅馬法上有一名言：契約已不能之給付為標(biāo)的者無(wú)效。此時(shí)若買(mǎi)受人為善意且無(wú)過(guò)失，為保護(hù)交易

32、安全，在特殊情況下買(mǎi)受人的基于買(mǎi)主訴權(quán)，以誠(chéng)意訴訟，向賣(mài)主請(qǐng)求賠償因契約無(wú)效所受的損失。但是總體來(lái)講古羅馬法并沒(méi)有形成前契約義務(wù)和締約過(guò)失責(zé)任的完整的制度。締約過(guò)失責(zé)任完整的理論和制度上系統(tǒng)化是近代以來(lái)的事情，它由德國(guó)法學(xué)家耶林提出。耶林1861年在其主編的耶林學(xué)說(shuō)年報(bào)第四卷上發(fā)表了締約上過(guò)失-契約無(wú)效與未成立時(shí)之損害賠償一文。他在該文中指出，德國(guó)普遍通法過(guò)分注重意志說(shuō)，強(qiáng)調(diào)當(dāng)事人主觀(guān)意志的合意，因此不足以適應(yīng)商業(yè)活動(dòng)的需要。例如，要約或承諾的傳達(dá)失實(shí)，相對(duì)人或標(biāo)的物的錯(cuò)誤都會(huì)影響契約的效力，倘若契約因當(dāng)事人一方的過(guò)失而不成立時(shí)，有過(guò)失的一方是否應(yīng)就他方因信賴(lài)契約的成立而遭受的損失負(fù)賠償責(zé)任？

33、耶林的回答是：從事契約締結(jié)的人，是從契約交易外的消極義務(wù)范疇，進(jìn)入契約上的積極義務(wù)范疇，其因此而承擔(dān)的首要義務(wù)，系于締約時(shí)須善盡必要的注意。法律所保護(hù)的，并非僅是一個(gè)業(yè)已存在的契約關(guān)系，正在發(fā)生的契約關(guān)系亦應(yīng)包括在內(nèi)，否則，契約交易將暴露于外，不受保護(hù)，締約一方當(dāng)事人不免成為他方疏忽或不注意的犧牲品。契約的締約產(chǎn)生了一種履行義務(wù)，若此種效力因法律上的障礙而被排除時(shí)，則會(huì)產(chǎn)生一種損害賠償義務(wù)。因此，所謂契約無(wú)效者，僅指不發(fā)生履行效力，非謂不發(fā)生任何效力。簡(jiǎn)言之，當(dāng)事人因自己過(guò)失致使契約不成立者，對(duì)信其契約為有效成立的相對(duì)人，應(yīng)賠償基于此項(xiàng)信賴(lài)而產(chǎn)生的損害。1這就是耶林關(guān)于締約過(guò)失責(zé)任的理論，它被

34、稱(chēng)為法學(xué)上的發(fā)現(xiàn)。自耶林提出締約過(guò)失理論的學(xué)說(shuō)后，得到了世界各國(guó)民法理論界的關(guān)注，隨后便進(jìn)行了較廣泛、深入而系統(tǒng)的研究，而且也逐漸被一些國(guó)家的立法或?qū)徟袑?shí)踐予以采納。在德國(guó)民法典制定之際，學(xué)者們就對(duì)締約過(guò)失問(wèn)題展開(kāi)了討論。多數(shù)起草者認(rèn)為，締約過(guò)失責(zé)任理論不易全盤(pán)接受而作為一般原則加以規(guī)定，只能在特殊情況下予以承認(rèn)。所以1900年的德國(guó)民法典的起草者并未完全接受締約上過(guò)失的理論，僅在錯(cuò)誤的撤銷(xiāo)(122條)、無(wú)權(quán)代理(179條)、自始客觀(guān)不能(307條)等有限范圍內(nèi)采納了這一觀(guān)點(diǎn)，但是締約過(guò)失理論在德國(guó)司法實(shí)務(wù)和學(xué)說(shuō)上得到了迅速發(fā)展，并逐漸形成了精細(xì)、龐大、復(fù)雜、適用范圍廣泛的制度，建立了一般化的原則。在日本民法中，判例上也承認(rèn)了締約過(guò)失責(zé)任理論。日本判例學(xué)說(shuō)從接觸磋商的當(dāng)事人之間的信賴(lài)和城實(shí)信用原則出發(fā)，尋找締約過(guò)失責(zé)任的根據(jù)，于是把這種責(zé)任的適用范圍擴(kuò)大到了如下領(lǐng)域：(1)自始不能履行合同使合同不成立或無(wú)效；(2)合同只停留在準(zhǔn)備磋商階段；(3)合同有效成立的情況。締約過(guò)失責(zé)任適用于合同有效成