論先契約陳述之契約責任—國際契約文件與德國民法之比較研究

本論文以歐盟消費者買賣指令（Consumer Sales Directive）為濫觴，其所創設之先契約陳述之契約責任制度，影響後續各國際契約文件含歐洲現行契約法原則（Acquis Principles，ACQP）、歐洲契約法原則（The Principles of European Contract Law，PECL）、共同參考架構草案（Draft Common Frame of Reference，DCFR）及歐洲共同買賣法（Common European Sales Law，CESL），紛紛制定先契約陳述之相關規範，亦影響德國民法將該指令轉化而制定成德國民法第434條第1項第3句之公開表示責任。本文擬以各國際契約文件與德國民法作為比較法之對象，觀察我國消費者保護法第22條以下之廣告責任，嘗試建構我國法下之先契約陳述契約責任之一般性規範。鑒於先契約陳述之契約責任之法理基礎，乃係保護他方當事人對於日後所欲締結之契約內容之正當合理期待不應受到契約前階段之任何不實先契約陳述或廣告陳述之內容干擾，致影響其締約之決定，亦涉一方當事人禁反言或有違誠實信用，比較法立基於此創設第三人先契約陳述，挑戰當事人間契約自治，使第三人之先契約陳述將影響契約當事人間之締約內容，並細緻化區別企業經營者自己與特定第三人所為之陳述而異其免責事由，且於特定第三人具有於銷售鏈上貼近企業經營者或出賣人地位時，企業經營者亦須對其陳述負擔同於自己陳述之責任。此外，更發展出先契約陳述之一般性規範；反觀我國法僅倚仗消費者保護法第22條以下與公平交易法第21條以下之不實廣告之相關規定，縱然有關於特定第三人廣告陳述之規定，如我國較為特殊之廣告薦證者，但顯然猶欠缺第三人廣告陳述之契約責任與廣告契約責任之明文免責事由，似已不足以因應國際立法例與現今交易之變動與發展趨勢。文末綜合整理彙整比較法與我國法之優劣與疏漏，於解釋論擴張至極限後，輔以日後立法展望作結。

關鍵字

先契約陳述；第三人先契約陳述；不實廣告；消費者保護法；正當合理期待；廣告薦證者；誠實信用原則；契約相對性原則；物之瑕疵擔保責任；債務不履行責任

並列摘要

This thesis is based on the EU Consumer Sales Directive, which established the system of the contractual responsibility for the pre-contractual statements. It subsequently influenced various international instruments including Acquis Principles (abbr. ACQP), The Principles of European Contract Law (abbr. PECL), the Draft Common Frame of Reference (abbr. DCFR), and the Common European Sales Law (abbr. CESL) with the concerning articles related to the pre-contractual statements. It also affected the German Civil Code to transform the directive into Article 434 paragraph 1 sentence 3 of the German Civil Code centered on the liability of the public statements. This thesis intends to take various international instruments and the German Civil law as the object of comparative law, in order to observe and examine the false advertising responsibility according to Consumer Protection Act Article 22 and attempt to construct a general norm of contractual responsibility for the false and misleading advertising in Taiwan. In view of the legal basis of the contractual responsibility for the pre-contract statements, it is to protect the legitimate and reasonable expectation of the other party regarding the content of the contract to be concluded in the future from being interfered with by any false or misleading pre-contractual statement or advertising by one party or third parties at the pre-contract stage, which results in the substantial impact on the parties' decision to conclude a contract. The legal basis also involves the party's estoppel or violation of good faith. The comparative law is based on this legal basis, and further creates pre-contractual statements made by third parties. These articles undoubtedly challenge the autonomy between the parties and might inhibit the doctrine of privity of contract, because the content of the contractual obligations is not only derived from the relationship with the other party, but also from the behaviors of third parties. It further distinguishes the statements made by the business himself and the statements made by specific third parties and therefore differs the application of the grounds for exemption. If the specific third parties in the business chain are relatively close to the status or have a close relationship with the business or the seller, then the business or the seller must also bear the same responsibility for the pre-contractual statements made by the third party as that of the statements made by himself. In addition, a general stipulation of pre-contractual statements made by one party has been developed. On the other hand, we only rely on the relevant provisions of false advertising under Article 22 of the Consumer Protection Act and under Article 21 of the Fair Trade Act. Although there are regulations on specific third-party advertising statements, for instance, the relatively unique provisions of endorsers, it is obviously still lacking the contractual responsibility for pre-contractual advertising statements made by the third parties, and also the expressly stipulated grounds for exemption for advertising contractual liabilities, which seems to be insufficient to respond to the changes and developing trends in international legislation and current varied transaction habits. Ultimately the thesis will summarize the pros and cons in contrast to the comparative law. After expanding the level of de lege lata to its limit, it is concluded with the prospect of future legislation at the level of de lege ferenda.

並列關鍵字

pre-contractual statements ； pre-contractual statements made by third parties ； false advertising ； Consumer Protection Act ； legitimate and reasonable expectation ； endorser ； good faith ； the doctrine of privity of contract ； the liability of defect warranty ； the liability of non-performance