论文部分内容阅读
缔约过失责任基于现代债权法的诚实信用原则而产生,针对违反先合同义务而设置。尽管我国立法界和学理界已建立了初步的缔约过失责任体系,但就信赖利益中机会利益的定位和损害赔偿一直鲜有论及。笔者将通过分析、对比两大法系的司法实践和立法,针对机会利益损害赔偿问题,提出分阶段规划,灵活运用履约利益限制赔偿;并就具体量化损害赔偿的方法,呼吁强化法官自由裁量。
Liability for contracting negligence arises on the principle of good faith based on the law of modern claims and is set against breach of prior contractual obligations. Although the legislative and academic circles in our country have established a preliminary liability system for contracting negligence, the positioning and damages for opportunistic interests in reliance interests have been rarely discussed. Through analyzing and comparing the judicial practice and legislation of the two legal systems, the author proposes a phased plan and flexibly uses the performance benefits to limit the compensation for the issue of compensation for the damage of the opportunity interests. It also calls for strengthening the discretion of the judges on the method of quantifying the damages.