合同漏洞法理研究

合同漏洞就是合同的客观规范内容不能准确和完备地描述与交易有关的所有未来可能出现的状态以及每种状态下合同各方的权利和义务 ,这是因为交易条件的不可证实性与不可观察性而存在的合同成本产生的。合同漏洞补充的基础是诚信原则导致合同关系的扩大 ,法官依据当事人的合同关系进行合同利益分配。合同漏洞补充的规则有合意补充、交易习惯补充、任意性法律规范补充和合同解释补充。但为控制法官的合同解释权力 ,应当完善合同漏洞补充的规则

Study of Legal Theory on Contract Flaw

Contracts flaw refers to the fact that the objective contents of a contract fail to cover exactly and thoroughly all possibly emerging circumstances in future as well as the rights and obligations of the parties to the contract thereof.Contract flaw results from the non confirmation and non observation of the transaction conditions.The basis for remedy of contract flaws is not assumption of statements of the parties,but rather the expansion of the contractual relations due to the application of the principle of good faith,and reallocation of the contractual interests by the judge in accordance with the contractual relationships between the parties.The rules for remedy of contract flaws include remedy by agreement of the parties,remedy with transaction practices,remedy with indefinite law provisions and remedy by explanation of contract.Finally,for the purpose that the power of the judge to explain contracts be under control,the rules for remedy of contract flaws should be optimized.