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私法自治,是指在私法领域中,当事人按照自己的意愿,完全有权自由决定其行为和参与市民生活的方式,不受任何个人或组织工作的非法干扰。而合同是民事主体进行私法自治的主要手段,伴随着合同从磋商到签订到履行再到履行完毕以后,法律赋予当事人不同的权利与义务,在合同签订前当事人负有先合同义务,在合同签订并生效后当事人负有合同义务,合同履行完毕后当事人负有后合同义务。违反不同的义务当事人要承担不同的责任,或者负缔约过失责任或者负违约责任。但在合同有效成立后到合同履行前这段时间内当事人违反义务应该如何规制?大陆法系规定了不安抗辩权制度,普通法系规定了预期违约制度。本文从比较法的角度对这两种制度进行了比较,并在对比的基础上考察了我国合同法的规定,指出了我国合同法规定的先进之处。
Private law autonomy means that in the field of private law, the parties, at their own will, have the full right to freely determine their behavior and the way they participate in the life of the citizens without any unlawful interference by any individual or organization. However, the contract is the main means for the civil subject to carry out the autonomy of private law. With the contract extending from consultation to signing to fulfillment to fulfillment, the law gives the parties different rights and obligations. Before the signing of the contract, the parties bear the obligation of first contract and the contract is signed After the entry into force of the contract, the parties have the contractual obligations, and after the completion of the contract, the parties have the post-contractual obligations. Violation of different obligations of the parties to assume different responsibilities, or contracting negligence liability or liability for breach of contract. However, how to regulate the parties’ breach of duty during the period from the effective establishment of the contract to the performance of the contract? The civil law stipulates the system of insecurity and the common law stipulates the expected system of default. This article compares the two systems from the perspective of comparative law and examines the provisions of the contract law of our country on the basis of contrast and points out the advanced aspects stipulated in the contract law of our country.