我国预约制度实证研究.pdf

密 级： 学校代码：10075 分类号： 学 号：20100217 法律硕士学位论文 我国预约制度实证研究 学位申请人: 闫 琰 指 导 教 师 : 陈 佳 展银戍 教授 学 位 类 别 : 法律专业硕士 学 科 专 业 : 法律硕士（非法学） 授 予 单 位 : 河北大学 答 辩 日 期 : 二○○一三年六月 Classified Index: CODE: 10075 U.D.C.: NO: 20100217 A Dissertation for the Degree of J.M Empirical Research of the Reservation System Candidate: Yan Yan Supervisor: Prof. Chen Jia Prof. Zhan Yinshu Academic Degree Applied for: Juris Master Specialty: Juris Master（（Law）） University: Hebei University Date of Oral Examination: June 2013 摘 要 I摘 要 随着市场经济的快速发展，市场交易活动越来越复杂，机会稍纵即逝，当事人为了稳定交易机会，减小交易成本，往往在签订正式的合同以前签订预约合同来确定阶段性磋商的成果。

当下，预约行为在市场交易中已经广泛存在，由此引起的纠纷数量也在逐年上升，纵观我国现行相关法律法规，只有在《买卖合同解释》第 2 条和最高人民法院《关于审理商品房买卖合同纠纷案件适用法律若干问题的解释》 第 5 条中对预约有少量的规定，并没有形成类似国外的制度化规定立法的不完善不仅使人们在商品交易中面临很多问题，也使得司法实务操作十分困难本论文正是有鉴于此，希望通过学习研究预约的相关问题，提出自己对预约的认识，以及对于立法中如何完善对预约认定、预约的效力及预约的违约责任的规定提出一些粗浅的见解 关键词 预约 本约 法律效力 违约责任 Abstract IIAbstract With the rapid development of market economy, the market trading is more and more complex, opportunity fleeting. In order to stabilize the trading opportunities and reduce transaction costs, the parties often sign reservation contract to determine the stage of consultation results before the signing of the formal contract. At the moment, booking behavior has been widely exists in the market.The number of disputes arising is increasing year by year. Throughout China's relevant laws or regulations, only explained in the contract for the sale of two and the Supreme People's Court on the trial of real estate sales contract disputes of a number of issues of interpretation “Article in a small amount of provisions, and it did not form similar foreign institutional provisions. Defects of legislation not only makes people face many problems in commodity trading, also makes judicial practice very difficult to operate.This thesis is the circumstances, through study and research the appointment, I hope that i can make my appointment,and make some superficial suggestion on how to improve legislation on the appointment identified, the effectiveness of booking and reservations of liability for breach . Keywords precontract contract legal effect violation responsibility 目 录 III目 录 引 言··································································································································1 第 1 章 我国预约制度的司法现状 ····················································································3 1.1 关于预约认定的司法案例 ·······················································································3 1.1.1 “黄海源诉富璟房地产公司商品房认购合同纠纷案” ·································3 1.1.2 排号单引出大事件 ····························································································4 1.1.3 小结····················································································································5 1.2 关于预约效力的司法案例 ·······················································································6 1.2.1 王某诉杨某预约买卖合同纠纷案·····································································6 1.2.2 黄承斌诉爱东房地产公司商品房预售合同纠纷案 ·········································7 1.2.3 小结····················································································································7 1.3 关于预约违约责任的司法案例················································································8 1.3.1 戴雪飞诉华新国际公司房屋买卖预约合同定金纠纷案 ·································8 1.3.2 甲装饰公司诉乙家具公司建筑合同案·····························································9 1.3.3 小结··················································································································10 第 2 章 预约制度的比较考察 ··························································································12 2.1 预约之认定·············································································································12 2.1.1 各国对预约合同的立法例···············································································12 2.1.2 各国对预约内容之规定 ··················································································13 2.1.3 预约与本约的认定 ··························································································13 2.2 预约之效力·············································································································14 2.2.1 墨、意、秘、俄对预约效力的规定·······························································14 2.2.2 法、美两国对预约效力的规定·······································································15 2.3 预约之违约责任·····································································································16 2.3.1 对实际履行的相关规定 ··················································································16 2.3.2 对赔偿范围的相关规定 ··················································································17 第 3 章 我国预约制度的立法现状及存在的问。