论预约合同及其违约救济路径
On Reservation Contracts and Their Path to Remedy for Breach of Contract

预约是分阶段交易实践的结果，旨在满足相关主体对阶段性谈判成果加以巩固的需求。《民法典合同编通则解释》第6至8条在《民法典》第495条的基础上进一步细化了预约合同的相关规定，在一定程度上回应了理论界和司法实务界关于预约合同的认定争议。预约合同的成立要件包括约定在将来另行签订正式合同的文本以及具备最低限度的确定性内容，故而对于实践中广泛存在的初步合约，应判断其是否严格满足预约的成立要件。在明确预约合同违约行为具体形态的基础上，现行立法针对预约合同违约情形大体规定了损害赔偿责任。应进一步探寻预约合同的违约救济路径，通过明确合同解除权、立约定金与违约定金的救济手段，并借鉴域外法中的解约定金制度，从而构建起更加完备的违约救济体系。
Reservation is the result of the practice of staged transactions and is designed to meet the needs of the relevant subjects to consolidate the results of staged negotiations. Articles 6 to 8 of the Interpretation of the General Provisions of the Contracts Section of the Civil Code further refine the provisions of the reservation contract on the basis of Article 495 of the Civil Code, which, to a certain extent, responds to the controversy over the determination of the reservation contract in both theoretical and judicial practice. The establishment of reservation contract includes the agreement to sign a separate formal contract in the future and the content of minimum certainty, therefore, for the preliminary contract that exists widely in practice, it should be judged whether it strictly meets the establishment of reservation. On the basis of clarifying the specific forms of breach of contract, the current legislation has generally provided for the liability for damages in case of breach of contract. It should further explore the path of remedies for breach of contract and construct a more complete system of remedies for breach of contract by clarifying the remedies of the right to rescind the contract, the deposit for making the contract and the deposit for breach of contract, as well as drawing on the system of deposit for cancellation of the contract in the extra-territorial law.