对缔约过失责任制度的新思考

缔约过失责任制度的产生与发展是合同法理论与实践现代化发展的一个显著特征。我国统一《合同法》在不断吸取两大法系成功的立法成果和最新的判例学说的基础上 ,对缔约过失责任进行了比较完备的规定 ,但法学界对此制度的研究基本上沿袭固有的思路和模式 ,忽视其现代化的发展 ,缺乏创新意识。本文拟从分析缔约过失责任制度发展的视角出发 ,分析其价值论基础 ,并进一步探讨其现代发展中的问题 ,以推动我国缔约过失责任制度的不断完善。

A New Thinking about the System of Fault Liability to Contract

The emergence and development of the system of fault liability to contract forms a striking characteristic in the modern development of the contract law. As for fault liability to contract, our contract law offers would-be perfect stipulations after absorbing some successful legislation achievements and the latest theory of judicial precedent from two great legal system. The study of this system by legal circles is still confined in a traditional pattern and thinking neglecting its modern development. The paper first analyzes the development of the system as well as its value theory basis followed by a further discussion about its problems in the modern development and at the same time, tries to promote the perfection of this system.