論前合同損害賠償中的期待利益－－基於動態締約過程觀的分析

On the Expectation Interest in the Pre- contractual Compensation Analysis Based on the Perspective of Dynamic Process of Conclusion of Contract

合同締結是一個動態的發展過程，當事人的信賴程度隨著締約接觸的密切化而逐步增強。只要當事人自願達成了關於合同內容的合意，私法自治原則的貫徹就要求推定合同的約束效果，除非存在阻礙此種效果的情況。除當事人的合意外，法律有關合同效力要件的規定具有多種規範目標，由於立法的疏漏，可能存在無效規定違反規範目的或無效率的問題。因此，通過司法途徑緩和無效（或不生效）合同的法律效果，承認真實合意在滿足全部生效要件前也能創設期待利益，尤其在因一方可歸責原因造成效力要件未獲滿足時對受害人准予期待利益賠償，在利益權衡上堪稱妥當。通過類型建構或賠償標準的考慮因素確定，則能夠避免對法律適用安定性的不當損害。

The conclusion of contract is a dynamic process of development, the degree of reliance of the parties gradually increased as the result of the way of bargaining in an increasingly closed manner. As long as the parties voluntarily reached the consensus with respect to the contents of the contract, the implementation of the principle of private autonomy should follow the presumption of the binding effect of contract, unless there are situations rebutting such presumption. There are various underlying normative purposes attached to the requirements for a valid contract, other than the requirement of a valid consent between the parties. Due to legislative oversight, there may have been situations where the legislative provisions with respect to void contract conflicting with the aforesaid normative purposes or with the problem of lack of efficiency. Therefore, a proper balance of interest is needed to ease the legal consequences of void (or invalid) contracts through judicial means, to recognize the position that a genuine consensus alone also creates the expectation interest even without the full satisfaction of all the other validity requirements, and to grant the victim the right to claim for the compensation of the expectation interest, especially where the absence or defect in the validity requirements of the contract can be imputed to the counterparty. Through determination of the taxonomy and the factors of compensation, it can avoid improper damage to the stability of the application of law.