企業簽訂意向書之法律性質研究

Abstract

隨本國企業經濟活動的穩定熱絡以及與國際交易合作的往來頻繁，為求企業經營的效率與表現、把握各種的商業活動的重要機會，近年企業之間以透過簽訂「意向書LOI」、「合作備忘錄MOU」等文件，作為紀錄交易雙方達成的初步意向及後續交易合作的期待目標，作以協商談判與正式簽訂契約之基礎與佐證依據。然為求方便，實務上企業在使用此類書面契約多欠缺周詳之條款設計，以致雙方對於當中之權利義務分配認定不清，造成因此類書面文件引起的法律爭議不斷，進而影響經濟活動與企業商譽；然而，引起上述各種爭議的緣由，無非因為我國對於意向書同質的簡易契約並無相關之法律明文規定，且民眾對於其內容作用、功能與認定之法律效力看法不一。 本篇論文佐以學者之書籍、期刊論文及實務判決作為研究之基礎，將探討重心聚焦於意向書為例之簡易書面契約進行相關介紹、概述各國對其之運用意見，並就意向書之預約性質與違反效果關聯進行探討，以作為企業經營對於此類簡易書面契約之運用基礎介紹與指引，並藉以減少實務因為該類約定之法律效力看法不一所造成的相關爭議。

With the steady enthusiasm of domestic enterprises’ economic activities and frequent interaction and cooperation with international transactions, in order to achieve the efficiency and performance of business operations and timely catch important opportunities from various business activities, in recent years, enterprises frequently use and enter into informal agreements, such as 'Letters of Intent, LOI' or 'Memorandum of Understanding, MOU,' for the purposes of recording initial intentions reached by the participating parties and the expected goals of subsequent transactional cooperation, as the basis and supporting evidence for further negotiation and eventually entering formal contracts in the future. However, practically speaking, for the sake of convenience and simplicity, such informal agreements often do not include well designed and detailed transactional terms at the time of signatures by the parties, under which the distribution of rights and obligations are usually unclear between or among the participating parties, resulting continuous legal disputes over various interpretations of such informal agreements, which in turn negatively affects economic activities and business reputation; but the reason for the above-mentioned various disputes is nothing more than that this nation has no directly relevant legal provisions governing the simple contract related to LOI, and the public has different points of view on their content, function and legal effect. This thesis uses relevant book articles and journal papers of various scholars, and also practical court judgments as the basis for the study, focusing upon discussion of the simple written contract such as LOI. By summarizing the opinions of various countries on its usage and analyzing the nature and effect of breach of preliminary contracts, this thesis aims at providing a basic introduction and guidance for the use of such simple written contracts in business operations, and practically reducing disputes caused by differences in the legal effects of such agreements.