我国合同法首次对缔约过失所致的损害赔偿作了规定,但并未解决缔约过失责任在我国民法中的法律地位问题。文章认为,从发展轨迹看,由于德国和法国的侵权立法模式不同,前者更为重视缔约过失责任。从理论基础看,诚实信用和合同自由两大原则维护了缔约中的公平正义,确立了缔约过失责任的制度价值。从法律性质看,缔约过失责任不同于侵权责任和违约责任,尽管三者存在竞合可能。在我国民法中,缔约过失责任应是独立于侵权责任和违约责任之外的一种责任类型,与合同、侵权、不当得利和无因管理等一起构成债的发生根据。 The Contract Law of our country provided for the first time damages for damage caused by faulty contracting, but did not solve the legal status of the fault liability of contracting contracting in our civil law. The article holds that, judging from the track of development, the former places more emphasis on fault liability of contracting parties due to the different models of tort legislation in Germany and France. From a theoretical perspective, the two principles of good faith and freedom of contract safeguard the fairness and justice in the treaty and establish the institutional value of fault liability in contracting for the treaty. Judging from the nature of law, contracting negligence liability is different from infringement liability and liability for breach of contract, though there is a possibility that the three are competing. In our civil law, contracting fault liability should be a kind of responsibility independent of infringement liability and breach of contract responsibility, and contractual, infringement, unjust enrichment and no-cause management together constitute the basis of the debt.