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缔约过失责任制度由德国法学家耶林于1861年提出,被誉为法学上的发现,对各国立法和判例产生了深远的影响,我国《合同法》对此也做出了一定的规定。本文从廓清缔约过失责任的基础着手,对缔约过失责任的特点、地位、构成要件、主要类型、赔偿范围进行了系统分析,得出:缔约过失责任是民法上继合同责任、侵权行为责任、不当得利返还责任、无因管理责任之后第五种独立的民事责任,在立法上应当将其规定为一般的民事责任。《合同法》规定了缔约过失责任,在立法上是一种创新。在制定民法典时,应当将其确定为民事责任的基本类型。
The liability system for contracting negligence was proposed by German jurist Jerin in 1861, which was hailed as the discovery of law and had a far-reaching impact on the legislation and precedents of various countries. The “Contract Law” of our country also stipulated this. This dissertation starts from the foundation of clarifying the fault liability of the contracting contracting party, and systematically analyzes the characteristics, status, constitutional elements, main types and scope of the contracting negligence liability, and draws the conclusion that contracting negligence liability is the responsibility of improper contractual responsibility and infringement in civil law There is no fifth kind of independent civil liability after the management responsibility, and the legislation should be made as a general civil liability. The “Contract Law” stipulates the liability for contracting negligence and is an innovation in legislation. When formulating the civil code, it should be defined as the basic type of civil liability.