語用預設(shè)在合同法默示條款中的體現(xiàn)
發(fā)布時間：2018-09-09 08:14
【摘要】： 默示條款是指作為當事人雙方合意的一部分,不言自明,理應存在于合同,而沒有通過合同的語言明示地表達出來的條款。默示條款是民法中一個重要的概念,因此中外法學家對于默示條款的相關(guān)問題論述頗多。其中我國學者多論及我國合同法中默示條款的運用,我國默示條款與英美法中默示條款的區(qū)分等問題,并從法學角度對我國現(xiàn)有默示條款提出完善和改進的建議。 對預設(shè)的研究源于哲學界,指說話人說出一句話時頭腦中預先假定當然成立的命題。后來,預設(shè)成為語義學和語用學研究的基本問題之一,在國內(nèi)外語言界引起廣泛關(guān)注和爭議。1971年,基南(Edward Keenan)首先提出語用預設(shè)這一概念。其后,語言學家從多個角度對其進行了探索,但他們的研究主要集中在闡述和應用方面,如語用預設(shè)在教學、廣告、戲劇中的應用。從語用預設(shè)的角度來探討法律中的默示條款,即把默示條款作為語用預設(shè)闡述和應用的載體,國內(nèi)外鮮有研究。 語用預設(shè)與說話人和說話對象有著密切的關(guān)系,涉及說話人和受話人的態(tài)度、信念、意圖等。在言語交際過程中,發(fā)話者為保證信息傳遞效率和交際成功,必須對受話人的知識狀態(tài)作出假設(shè),以便決定哪些信息需斷言,哪些是無需用言語外化的背景信息。這種假設(shè)不一定具有真實性,但發(fā)話者必須作出,并且交際雙方對此沒有異議,或能為雙方所接受。 本文試圖通過把語用學中的語用預設(shè)理論應用于法學研究中,力圖通過結(jié)合跨學科知識取得新穎的研究成果。作者從默示條款與語用預設(shè)的相似性入手,從語用學角度來解釋默示條款概念,即以語用預設(shè)作為橋梁,把英美法系中完善的默示條款體系移植到我國法律體系中。 默示條款本身復雜,又因其在具體實用中的靈活性而益發(fā)艱深。在英美法中,默示條款作為商法中一直存在的一個基礎(chǔ)性條款從一產(chǎn)生就備受合同雙方當事人,法學界學者,法律實務(wù)人士重視,并形成了較為完整的體系。按照內(nèi)容不同,默示條款被分為成文法上的默示條款,事實上的默示條款和習慣上的默示條款。 而在我國民法體系中,默示條款僅散見于合同法總則和分則中,尚未建立起完整體系�？偨Y(jié)合同法中關(guān)于默示條款的各條具體規(guī)定,我國默示條款也可分為法律上的默示條款,事實上的默示條款與習慣上的默示條款。但在具體司法實踐中,雙方當事人與法律實務(wù)人士對默示條款的適用、解釋和排除卻沒有比較固定的模式可以遵循。 本文回顧了對語用預設(shè)的三種主流解釋:說話人對言語的語境所作的預設(shè);說話人與聽話人共有知識:一個言語行為所必須滿足的恰當條件。作者認為這三種解釋各有側(cè)重,綜合觀之有助于全面理解語用預設(shè)這個復雜概念。作者嘗試將語用預設(shè)的三種解釋與默示條款的三個類型配對: 說話人對言語的語境所作的預沒可被視為,合同一方當事人在簽訂合同時自認為不用明確寫明,對方當事人也完全認可的合同內(nèi)容。 說話人與聽話人共有知識等同于默示條款中已經(jīng)形成并被廣泛認可的商業(yè)習慣和商事活動慣常做法。 言語行為所必須滿足的恰當條件在默示條款上表現(xiàn)為,國家為了規(guī)范商事行為,確保合同目的實現(xiàn),而在法律中具體規(guī)定并強制適用的合同條款。 作者把語用學的預設(shè)概念應用于默示條款中,試圖把復雜的法學概念轉(zhuǎn)化成一個簡單的語言現(xiàn)象。這樣不僅能便于合同雙方對默示條款的理解,還能夠讓諸如法官等司法工作者從新的角度認識英美法中比較成熟的默示條款體系,有助于我國合同法中默示條款的完善。 由于國內(nèi)外把語用預設(shè)應用于默示條款的研究極少,相關(guān)研究資料相對匱乏,作者期待本文能拋磚引玉,引起學界前輩和專家的關(guān)注,并希望語用學理論能更多地應用于法律理論和司法實踐中,推進我國法制現(xiàn)代化建設(shè)。
[Abstract]:Implied clause refers to the clause which, as a part of the parties'agreement, should exist in the contract without being expressed explicitly in the language of the contract. Implied clause is an important concept in civil law. Therefore, there are many discussions on the relevant issues of the implied clause by Chinese and foreign jurists. Among them, Chinese scholars mostly talk about me. The application of implied clause in China's contract law and the distinction between implied clause and implied clause in Anglo-American law are discussed. Some suggestions are put forward to perfect and improve the existing implied clause in China from the angle of law.
The study of presupposition originates from philosophical circles, which refers to the proposition that presupposition in the speaker's mind naturally holds when he utters a sentence. Later, presupposition became one of the basic issues in semantics and pragmatics, which aroused widespread concern and controversy in foreign language circles in China. In 1971, Edward Keenan first proposed the concept of pragmatic presupposition. Linguists have explored it from many perspectives, but their research mainly focuses on its elaboration and application, such as the application of Pragmatic Presupposition in teaching, advertising and drama.
Pragmatic presupposition is closely related to the speaker and the speaker's attitudes, beliefs, intentions, etc. In verbal communication, in order to ensure the efficiency of information transmission and the success of communication, the speaker must make assumptions about the recipient's state of knowledge in order to decide which information needs to be asserted and which does not need to be spoken. This hypothesis is not necessarily true, but the speaker must make it, and there is no objection or acceptance on both sides.
This paper attempts to apply the theory of pragmatic presupposition to the study of jurisprudence in an attempt to achieve new research results by combining interdisciplinary knowledge. Starting with the similarities between implied clauses and pragmatic presuppositions, the author tries to explain the concept of implied clauses from the perspective of pragmatics, that is, to use pragmatic presupposition as a bridge to perfect the English-American legal system. The implied clause system is transplanted into our legal system.
Implied clause is complicated in itself, but also more difficult because of its flexibility in practical application. In Anglo-American law, implied clause, as a basic clause in commercial law, has been attached great importance by both parties to the contract, scholars in law circles and legal practitioners since its inception, and has formed a relatively complete system. The terms are divided into implied terms in the statute law, implied terms in fact and customary implied terms.
In China's civil law system, implied clauses are only scattered in the general and sub-clauses of the contract law, but a complete system has not yet been established. In China, there is no fixed model for the application, interpretation and exclusion of implied clauses by both parties and legal practitioners.
This paper reviews three mainstream explanations of pragmatic presupposition: the presupposition made by the speaker in the context of speech; the knowledge shared by the speaker and the hearer: the appropriate conditions that a speech act must satisfy. The three explanations for pragmatic presupposition are three types of matching:
The presupposition made by the speaker in the context of the speech can be regarded as the content of the contract which one party of the contract thinks it is not necessary to specify clearly when signing the contract and which the other party fully agrees with.
Shared knowledge between the speaker and the hearer is equivalent to the business practices and business practices that have been developed and widely accepted in the implied terms.
The appropriate conditions that speech act must satisfy are embodied in the implied clauses. In order to regulate the commercial act and ensure the realization of the contract purpose, the state specifies and enforces the contract clauses in the law.
The author applies the concept of Presupposition in pragmatics to implied clauses and tries to turn complex legal concepts into a simple linguistic phenomenon, which not only facilitates the understanding of implied clauses by both parties to the contract, but also enables judicial workers, such as judges, to understand the relatively mature implied clause system in Anglo-American law from a new perspective. The perfection of implied terms in China's contract law.
As there are few studies on the application of pragmatic presupposition to implied clauses at home and abroad, and the relevant research materials are relatively scarce, the author expects that this paper will draw the attention of scholars and experts, and hopes that pragmatics theory can be more applied to legal theory and judicial practice to promote the modernization of China's legal system.
【學位授予單位】：西南政法大學
【學位級別】：碩士
【學位授予年份】：2008
【分類號】：H030
[Abstract]:Implied clause refers to the clause which, as a part of the parties'agreement, should exist in the contract without being expressed explicitly in the language of the contract. Implied clause is an important concept in civil law. Therefore, there are many discussions on the relevant issues of the implied clause by Chinese and foreign jurists. Among them, Chinese scholars mostly talk about me. The application of implied clause in China's contract law and the distinction between implied clause and implied clause in Anglo-American law are discussed. Some suggestions are put forward to perfect and improve the existing implied clause in China from the angle of law.
The study of presupposition originates from philosophical circles, which refers to the proposition that presupposition in the speaker's mind naturally holds when he utters a sentence. Later, presupposition became one of the basic issues in semantics and pragmatics, which aroused widespread concern and controversy in foreign language circles in China. In 1971, Edward Keenan first proposed the concept of pragmatic presupposition. Linguists have explored it from many perspectives, but their research mainly focuses on its elaboration and application, such as the application of Pragmatic Presupposition in teaching, advertising and drama.
Pragmatic presupposition is closely related to the speaker and the speaker's attitudes, beliefs, intentions, etc. In verbal communication, in order to ensure the efficiency of information transmission and the success of communication, the speaker must make assumptions about the recipient's state of knowledge in order to decide which information needs to be asserted and which does not need to be spoken. This hypothesis is not necessarily true, but the speaker must make it, and there is no objection or acceptance on both sides.
This paper attempts to apply the theory of pragmatic presupposition to the study of jurisprudence in an attempt to achieve new research results by combining interdisciplinary knowledge. Starting with the similarities between implied clauses and pragmatic presuppositions, the author tries to explain the concept of implied clauses from the perspective of pragmatics, that is, to use pragmatic presupposition as a bridge to perfect the English-American legal system. The implied clause system is transplanted into our legal system.
Implied clause is complicated in itself, but also more difficult because of its flexibility in practical application. In Anglo-American law, implied clause, as a basic clause in commercial law, has been attached great importance by both parties to the contract, scholars in law circles and legal practitioners since its inception, and has formed a relatively complete system. The terms are divided into implied terms in the statute law, implied terms in fact and customary implied terms.
In China's civil law system, implied clauses are only scattered in the general and sub-clauses of the contract law, but a complete system has not yet been established. In China, there is no fixed model for the application, interpretation and exclusion of implied clauses by both parties and legal practitioners.
This paper reviews three mainstream explanations of pragmatic presupposition: the presupposition made by the speaker in the context of speech; the knowledge shared by the speaker and the hearer: the appropriate conditions that a speech act must satisfy. The three explanations for pragmatic presupposition are three types of matching:
The presupposition made by the speaker in the context of the speech can be regarded as the content of the contract which one party of the contract thinks it is not necessary to specify clearly when signing the contract and which the other party fully agrees with.
Shared knowledge between the speaker and the hearer is equivalent to the business practices and business practices that have been developed and widely accepted in the implied terms.
The appropriate conditions that speech act must satisfy are embodied in the implied clauses. In order to regulate the commercial act and ensure the realization of the contract purpose, the state specifies and enforces the contract clauses in the law.
The author applies the concept of Presupposition in pragmatics to implied clauses and tries to turn complex legal concepts into a simple linguistic phenomenon, which not only facilitates the understanding of implied clauses by both parties to the contract, but also enables judicial workers, such as judges, to understand the relatively mature implied clause system in Anglo-American law from a new perspective. The perfection of implied terms in China's contract law.
As there are few studies on the application of pragmatic presupposition to implied clauses at home and abroad, and the relevant research materials are relatively scarce, the author expects that this paper will draw the attention of scholars and experts, and hopes that pragmatics theory can be more applied to legal theory and judicial practice to promote the modernization of China's legal system.
【學位授予單位】：西南政法大學
【學位級別】：碩士
【學位授予年份】：2008
【分類號】：H030
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