第三人欺詐、脅迫而訂立的合同法律問題研究
發(fā)布時間：2018-12-30 10:39
【摘要】：我國關(guān)于第三人欺詐、脅迫而訂立的合同,經(jīng)歷了法律沒有規(guī)定到立法明確規(guī)定的歷史進程。在《民法總則》通過之前,國內(nèi)理論界借鑒域外立法的規(guī)定,對第三人欺詐、脅迫而訂立的合同效力進行了深入研究。學者們主要分為兩種觀點:第一種觀點主張采用“區(qū)分模式”,即區(qū)分欺詐、脅迫情形,在合同效力問題上適用不同的救濟標準;第二種觀點主張采用“統(tǒng)一模式”,即不區(qū)分欺詐、脅迫情形,在合同效力問題上適用統(tǒng)一的救濟標準。由于當時我國法律對因第三人欺詐、脅迫而訂立的合同效力問題沒有明確的規(guī)定,導致司法實踐中處理和解決此類合同糾紛時遇到了很多困境,2017年3月15日審議通過的《中華人民共和國民法總則》,為解決第三人欺詐、脅迫合同效力問題提供了依據(jù)。我國《民法總則》采用了“區(qū)分模式”,選擇這種模式主要是從第三人欺詐與第三人脅迫兩種行為的社會危害性程度不同去考慮的,域外很多國家也基于兩種行為的社會危害性程度不同而采用了“區(qū)分模式”。依據(jù)《民法總則》規(guī)定的精神,針對我國后續(xù)《合同法》關(guān)于第三人欺詐、脅迫而訂立的合同法律救濟制度的完善,可以從以下兩個方面著手:一方面明確第三人的范圍,欺詐、脅迫的構(gòu)成要件。明確合同相對人的法定代表人、法定代理人、委托代理人、一方為輔助締約而參與締約行為的人、有限責任公司的股東、合同當事人的子公司、分公司、內(nèi)設機構(gòu)、與合同一方當事人形成緊密經(jīng)濟合作關(guān)系和利益分配關(guān)系的人以及與合同當事人一方惡意串通的人不屬于第三人;關(guān)于如何認定欺詐、脅迫,可依據(jù)最高人民法院《關(guān)于貫徹執(zhí)行中華人民共和國民法通則若干問題的意見(試行)》第68條和第69條的規(guī)定確定;而第三人欺詐、脅迫的構(gòu)成要件,包括了第三人有欺詐、脅迫故意,實施了欺詐、脅迫行為,受害人基于錯誤認識或恐懼心理為意思表示、被害人的意思表示與錯誤認識或脅迫行為之間有因果關(guān)系。另一方面完善第三人欺詐、脅迫而訂立合同的具體救濟制度。關(guān)于撤銷權(quán)制度的完善,賦予受害方在合同尚未實際履行時撤銷合同的權(quán)利、以及善意相對人提出撤銷合同的權(quán)利;針對舉證責任制度的完善,規(guī)定合同相對人就是否知道或應當知道的事實負有舉證責任;規(guī)定受害人對自行不能調(diào)取的證據(jù)可申請人民法院或仲裁機構(gòu)調(diào)取證據(jù);在當事人責任分配制度完善方面,規(guī)定合同雙方當事人根據(jù)過錯互負損害賠償責任;建立第三人侵害債權(quán)責任制度,規(guī)定合同相對方為善意時受害方可要求第三人承擔侵權(quán)損害賠償責任,受害方和相對方均無過錯時,都可以要求第三人承擔侵權(quán)損害賠償責任。
[Abstract]:The contract concluded by third party fraud and coercion in our country has gone through the historical process from the law to the legislation. Before the adoption of the General principles of Civil Law, the domestic theorists studied the validity of contracts concluded by third party fraud and coercion by referring to the provisions of extraterritorial legislation. Scholars mainly divided into two points of view: the first point of view is to adopt a "distinction model", that is, to distinguish between fraud and coercion, and apply different relief standards on the issue of contract effectiveness; The second point of view is to adopt the "unified model", that is, to apply the uniform relief standard in the issue of contract validity without distinguishing between fraud and coercion. At that time, there was no clear stipulation on the validity of the contract concluded by the third party fraud and coercion in our country's law, which led to many difficulties in dealing with and resolving this kind of contract dispute in judicial practice. The General principles of Civil Law of the people's Republic of China, which was deliberated and adopted on March 15, 2017, provide a basis for solving the problem of fraud and coercion of third parties. The General principles of Civil Law in China adopt the "distinguishing model", which is mainly considered from the different degree of social harmfulness between the third party fraud and the third party coercion. Many countries in foreign countries also adopt the "distinguishing mode" based on the different degree of social harmfulness of the two acts. In accordance with the spirit of the General provisions of Civil Law, and in view of the perfection of the legal relief system of the contract concluded by third party fraud and coercion in China's contract Law, we can proceed from the following two aspects: on the one hand, we should clarify the scope of the third party. The constituent elements of fraud and coercion. Defining the legal representative, legal agent, entrusting agent of the counterpart of the contract, the person who participates in the contracting act of one party to assist in the contracting, the shareholders of the limited liability company, the subsidiary company of the contract party, the branch company, the internal organization, A person who forms a close relationship of economic cooperation and distribution of interests with one of the parties to the contract and a person who is maliciously colluded with one of the parties to the contract does not belong to the third party; As to how to identify fraud and coercion, it may be determined according to the provisions of articles 68 and 69 of the Supreme people's Court concerning the implementation of certain issues concerning the implementation of the General principles of Civil Law of the people's Republic of China (on a trial basis); The constituent elements of the third person's fraud and coercion include the third person's fraud, the coercion intention, the execution of the fraud, the coercing act, and the victim's intention expressed on the basis of false cognition or fear. There is a causal relationship between the expression of the victim's intention and the wrong cognition or coercion. On the other hand, improve the third-party fraud, coercion and the conclusion of the specific relief system. On the perfection of the system of rescission right, the injured party is given the right to cancel the contract when the contract has not been actually performed, and the right of the bona fide counterpart to withdraw the contract; In view of the perfection of the system of burden of proof, it is stipulated that the relative party of the contract shall bear the burden of proof as to whether or not he knows or should know the facts, and that the victim may apply to the people's court or the arbitration institution to obtain the evidence which cannot be obtained by himself; In the aspect of perfecting the system of party liability distribution, it is stipulated that both parties to a contract shall bear the liability for damages according to their fault. In order to establish the liability system of the third party's infringement of creditor's rights, the injured party may ask the third party to bear the liability for tort damage when the contract relative party is in good faith, and both the injured party and the opposite party can require the third party to bear the liability for tort damage compensation when there is no fault.
【學位授予單位】：湘潭大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D923.6
本文編號：2395467
[Abstract]:The contract concluded by third party fraud and coercion in our country has gone through the historical process from the law to the legislation. Before the adoption of the General principles of Civil Law, the domestic theorists studied the validity of contracts concluded by third party fraud and coercion by referring to the provisions of extraterritorial legislation. Scholars mainly divided into two points of view: the first point of view is to adopt a "distinction model", that is, to distinguish between fraud and coercion, and apply different relief standards on the issue of contract effectiveness; The second point of view is to adopt the "unified model", that is, to apply the uniform relief standard in the issue of contract validity without distinguishing between fraud and coercion. At that time, there was no clear stipulation on the validity of the contract concluded by the third party fraud and coercion in our country's law, which led to many difficulties in dealing with and resolving this kind of contract dispute in judicial practice. The General principles of Civil Law of the people's Republic of China, which was deliberated and adopted on March 15, 2017, provide a basis for solving the problem of fraud and coercion of third parties. The General principles of Civil Law in China adopt the "distinguishing model", which is mainly considered from the different degree of social harmfulness between the third party fraud and the third party coercion. Many countries in foreign countries also adopt the "distinguishing mode" based on the different degree of social harmfulness of the two acts. In accordance with the spirit of the General provisions of Civil Law, and in view of the perfection of the legal relief system of the contract concluded by third party fraud and coercion in China's contract Law, we can proceed from the following two aspects: on the one hand, we should clarify the scope of the third party. The constituent elements of fraud and coercion. Defining the legal representative, legal agent, entrusting agent of the counterpart of the contract, the person who participates in the contracting act of one party to assist in the contracting, the shareholders of the limited liability company, the subsidiary company of the contract party, the branch company, the internal organization, A person who forms a close relationship of economic cooperation and distribution of interests with one of the parties to the contract and a person who is maliciously colluded with one of the parties to the contract does not belong to the third party; As to how to identify fraud and coercion, it may be determined according to the provisions of articles 68 and 69 of the Supreme people's Court concerning the implementation of certain issues concerning the implementation of the General principles of Civil Law of the people's Republic of China (on a trial basis); The constituent elements of the third person's fraud and coercion include the third person's fraud, the coercion intention, the execution of the fraud, the coercing act, and the victim's intention expressed on the basis of false cognition or fear. There is a causal relationship between the expression of the victim's intention and the wrong cognition or coercion. On the other hand, improve the third-party fraud, coercion and the conclusion of the specific relief system. On the perfection of the system of rescission right, the injured party is given the right to cancel the contract when the contract has not been actually performed, and the right of the bona fide counterpart to withdraw the contract; In view of the perfection of the system of burden of proof, it is stipulated that the relative party of the contract shall bear the burden of proof as to whether or not he knows or should know the facts, and that the victim may apply to the people's court or the arbitration institution to obtain the evidence which cannot be obtained by himself; In the aspect of perfecting the system of party liability distribution, it is stipulated that both parties to a contract shall bear the liability for damages according to their fault. In order to establish the liability system of the third party's infringement of creditor's rights, the injured party may ask the third party to bear the liability for tort damage when the contract relative party is in good faith, and both the injured party and the opposite party can require the third party to bear the liability for tort damage compensation when there is no fault.
【學位授予單位】：湘潭大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D923.6
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