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缔约过失责任是大陆法系民法理论中的一项重要学说,该学说较好地解决了合同缔结阶段对当事人的保护,避免了合同缔结这一过程成为法律调整的空白之地。自耶林创立该理论后,各国立法和判例纷纷予以确认。但立法和判例的确认,并未解决缔约过失责任理论中留下的若干问题。完善的理论是指导我们进行科学的立法前提,我国正在如火如茶地进行民法典编撰,梳理缔约过失责任上的理论问题,有助于建立我国合理的民事责任体系。基于完善我国民事责任体系的动机,文章对缔约过失责任的若干理论问题进行了探讨。本文探讨了缔约过失责任的基础理论,并总结了我国立法和实践中存在的问题,指出了缔约过失责任的完善途径。
The responsibility of contracting negligence is an important doctrine in the civil law theory of civil law system. This doctrine has better solved the protection of the parties during the stage of contract conclusion and avoided the blank of legal regulation by the process of contract conclusion. Since the establishment of this theory by Jelling, various national legislations and precedents have confirmed it. However, the recognition of legislation and precedent does not solve some problems left in the liability theory of negligence. The perfect theory is to guide us to make scientific premise of legislation. Our country is doing a lot of research on the compilation of civil code such as fireworks, combing the theoretical issues on the fault liability of contracting contracting parties and helping to establish our reasonable civil liability system. Based on the motivation of perfecting civil liability system in our country, the article discusses some theoretical issues about contracting fault liability. This article explores the basic theory of contracting negligence and summarizes the problems existing in our country’s legislation and practice and points out the consummation way of contracting negligence.