【摘要】：當事人雙方之間為了締結合同進行磋商,此為締約階段,締約階段是合同成立的必經(jīng)階段。當事人在締約階段存在的締約關系受法律保護,我國合同法中設立了締約過失責任,約束締約雙方在締約過程中的行為,但是尚未對第三人侵害締約關系的行為進行約束。法律是否應當要求第三人在締約階段實施的侵害締約關系的行為承擔責任?如果規(guī)定第三人對侵害締約關系的行為承擔責任,那么這一賠償范圍是否涵蓋精神損害?我國法律尚未對第三人侵害締約關系做出明確規(guī)定,也未對第三人侵害締約關系所生精神損害賠償責任作出規(guī)定。比較域外法,美國法律對第三人侵害締約關系所生精神損害賠償責任的規(guī)定較為健全,可以適當借鑒域外法的規(guī)定,促進我國法律制度的完善。本文對第三人侵害締約關系所生精神損害賠償責任進行研究,包括以下四個部分。第一部分為第三人侵害締約關系的法理審視。該部分概述了第三人侵害締約關系的基本概念,闡釋了締約關系應當受到法律保護的理論依據(jù)以及證明第三人實施的侵害締約關系的行為屬于侵權行為。第二部分為第三人侵害締約關系所生精神損害賠償?shù)摹话阏J識。該部分概述了第三人侵害締約關系與精神損害賠償之間的關系,對侵害締約關系所生精神損害進行賠償?shù)谋匾赃M行論述。第三部分為第三人侵害締約關系適用精神損害賠償——美國的做法。該部分詳細介了美國侵權法關于第三人侵害締約關系所生精神損害賠償責任的規(guī)定,主要以美國《侵權法重述》及案例為研究對象,從第三人侵害締約關系所生精神損害賠償責任的構成要件、舉證責任、賠償數(shù)額等方面進行敘述,然后對美國侵權法關于第三人侵害締約關系所生精神損害賠償責任的做法進行評價。第四部分為第三人侵害締約關系所生精神損害賠償在我國的適用。首先,對我國關于精神損害賠償責任的法律規(guī)定做出了分析并闡述了我國學者對第三人侵害締約關系所生精神損害賠償責任的立場,筆者發(fā)現(xiàn)我國關于精神損害賠償責任存在適用條件過寬、賠償數(shù)額混亂、責任承擔方式不合理等方面的缺陷。其次,通過第三部分分析美國侵權法中關于第三人侵害締約關系所生精神損害賠償責任中構成要件、精神損害的證明方式、責任承擔方式等方面的有益成分,對我國關于侵害締約關系所生精神損害賠償責任的法律提出建議。文章最后對三人侵害締約關系侵害締約關系所生精神損害賠償責任的意義進行肯定。限制第三人侵害締約關系的行為,賦予受害人向第三人主張侵害締約關系所生精神損害主張賠償責任,有利于完善我國的侵權法律制度。
[Abstract]:The parties to enter into a contract to negotiate, this is the contracting stage, the contracting stage is the necessary stage of contract establishment. The contracting relations existing in the contracting stage of the parties are protected by law. The contract law of our country establishes the fault liability of contracting, which restricts the behavior of the contracting parties in the process of contracting, but has not yet restricted the third party's act of infringing on the contracting relationship. Should the law require a third party to be held liable for acts committed at the contracting stage that infringe on the contracting relationship? If third parties are required to be liable for acts that infringe on the contracting relationship, does this scope of compensation cover moral damage? The law of our country has not clearly stipulated the third party's infringement on the contracting relationship, nor has it stipulated the liability of the third party to compensate for the spiritual damage caused by the third party's infringement on the contracting relationship. Compared with the extraterritorial law, the provisions of American law on the liability for compensation for mental damage caused by the third party's infringement on the contracting relationship are relatively perfect, which can be used for reference to promote the perfection of the legal system of our country. This paper studies the liability for mental damage caused by the third party's infringement on the contracting relationship, including the following four parts. The first part is the legal examination of the third party's infringement on the contracting relationship. This part summarizes the basic concept of the third party's infringement on the contracting relationship, explains the theoretical basis that the contracting relationship should be protected by law, and proves that the third party's infringement on the contracting relationship is a tort. The second part is the compensation for the mental damage caused by the third party's infringement on the contracting relationship-general understanding. This part summarizes the relationship between the third party's infringement contracting relationship and the compensation for mental damage, and discusses the necessity of compensation for the mental damage caused by the infringing contracting relationship. The third part is the application of moral damage compensation to the third party's infringement of the contracting relationship-the United States practice. This part introduces in detail the provisions of the United States Tort Law on the liability of third parties for moral damage arising from the infringement of the Contracting relationship, mainly focusing on the restatement of Tort Law in the United States and the cases as the object of study. It is described from the aspects of the constituent elements, the burden of proof and the amount of compensation for the spiritual damage caused by the third party's infringement on the contracting relationship. Then the United States tort law on the third party infringes on the liability for mental damage caused by the evaluation. The fourth part is the application of the compensation for spiritual damage caused by the third party's infringement on the contracting relationship in our country. First of all, this paper analyzes the legal provisions of the liability for mental damage compensation in China and expounds the position of the scholars of our country on the liability of compensation for mental damage arising from the third party's infringement on the contracting relationship. The author finds that there are some defects in the liability of compensation for mental damage in China, such as too wide applicable conditions, confusion in the amount of compensation, unreasonable way of bearing responsibility and so on. Secondly, through the third part of the United States Tort Law on the third party infringement of the relationship between the spiritual damage caused by the constituent elements of the liability, the way of proof of mental damage, liability and other aspects of the beneficial elements, and so on. This paper puts forward some suggestions on the liability for mental damage caused by the infringement of the relationship between the contracting parties in our country. Finally, the article affirms the significance of the liability for mental damage caused by the infringement of the contracting relationship by the three persons. It is beneficial to perfect the tort legal system of our country by restricting the third party's act of infringing the contracting relationship and giving the victim the liability to claim compensation for the spiritual damage caused by the third party's infringement on the contracting relationship.
【學位授予單位】：南京大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D913
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本文編號：2442301