基于先合同义务的合同效力补正义务

违反先合同义务的行为可能发生在两个时间段:一是要约生效双方当事人开始谈判至合同成立止,即合同缔结期;二是合同成立至合同生效前,即合同效力成就期。有学者据此将违反先合同义务的责任形态划分为两种即缔约过失责任和效力过失责任,笔者认为效力过失责任只是缔约过失责任的一种特殊形态,即缔约过失责任可根据违反先合同义务的行为发生的时间段不同将其责任形态划分为合同不成立过失责任和合同效力过失责任。本文主要讨论的是基于违反先合同义务的合同效力补正问题。

The Redeeming Responsibility Based on the Efficacy of the Preceding Contract Obligation

The contract-breaking actions may appears in two periods: One is the bargaining period from negotiation to agreement between the two parties, the other is the contract forming period from agreement to come-into-operation. According to the opinion, some scholars divided the contract-breaking obligation into the contract chance-liability and the efficacy-liability. The author think that the latter was just a special form of the former, the contract chance-liability can be divided minutely according to the different contract-breaking periods into the ineffective contract chance-liability and the contract efficacy-liability. This paper mainly discusses the redeeming responsibility based on the efficacy.