预约合同中的违约责任研究

Research on Liability for Breach of Contract of Appointment

摘要: 关于预约合同的违约责任规则，在理论和实践中存在三个争议问题：预约合同违约责任的认定基础，预约违约能否主张继续履行以及损害赔偿的范围界定。本文从预约合同制度功能出发，确定预约合同的法律效力采“缔约说”立场，并通过概念背后隐含的事先判断，界定本文语境下预约合同的范围，从而以该前提逻辑出发，解答三个争议焦点：当事人未履行订立本约的义务即构成违约责任；预约违约应以不适用继续履行为原则，以适用继续履行为保护例外；以本约的信赖利益为基础，以机会损失酌定个案的损害赔偿范围。

Abstract: There are three controversial issues in theory and practice regarding the rules of liability for breach of contract of appointment: the basis for determining the liability for breach of contract of appointment, whether a breach of appointment can be claimed for continued performance, and the definition of the scope of damages. Starting from the function of the reservation contract system, this paper adopts the “contracting theory” to determine the legal effect of reservation contracts, and defines the scope of the reservation contract in the context of this paper through the prior judgment implied behind the concept, so as to answer three controversial points based on the logic of this premise: the failure of the parties to perform the obligation to conclude the present contract constitutes the liability for breach of contract; the principle of non-application of the reservation contract for breach of contract should be the exception of the application of the continuation of performance; and the scope of damages based on the reliance interest of the present contract and the discretion of the loss of opportunity.