论缔约中信息披露义务立法正当性及价值

信息披露义务虽然能在现代契约纠纷的解决中扮演重要角色,但却并未被中国《合同法》接纳为一般性先契约义务。其障碍主要来自于作为中国《合同法》基础的古典契约法理论中的主体假定和契约模型预设。然则,在现代交易环境和新契约法理论的双重夹击下,古典契约法理论存续的正当性已被逐渐瓦解。在此背景下,对披露义务在古典契约法理论上的立法障碍进行全面解构,并依托建基于现代契约特点之上的关系契约理论求解该义务的立法正当性和价值,应能为中国《合同法》尽早采纳该义务并建构起完善的先合同信息披露法律制度提供必要的理论支持。

On the Legitimacy and Value of the Pre-contractual Duty to Disclose Information

Although the duty to disclose information can play an important role in settling disputes arise from modern contract, it has not been adopted by Contract Law of China as a pre-contract duty which main obstacles are created by the presumption of parties to contract and the hypothesis of contract model of classical contract theory. However, challenged by modern transaction circumstances and new contract theories, the classical contract theory has been losing its legitimacy. Against this background, analyzing the said obstacles in detail and finding the rationality and value of the duty to disclose information in relational contract theory based on the characteristics of modern contract can help a lot in constructing the legal institutions of the duty in China.