The Study On Precontract Legal System

The contract has more than 2000 years history until now from the Roman time.There were several kinds of contracts which adapt to simple economy of Roman,but today the contract law is a perfect legal system and includes so many forms of contracts.We can say this branch of civil law which has the closest relationship with the commodity economy or the market economy is totally different from what it was.The most primitive and powerful propelling force come from the transaction of commodity or the market,so the legislators of every countries obey the demand of development of the economy and positively formulates new legislations to reply such demand.Today,the period governed by contract law is not limit in the period between the time spot of the contract becomes effective and its end.Contract law takes these two time spots as the zero point and extends in two orientations(before the contract becomes effective and after the contract reaches its end) which is demonstrated by the responsibilities before and after the contract provided in contract law.And before the contract becomes effective,the litigants have to go through a long time consulting and preparing and their rights and interest are only protected by the responsibilities of consulting negligence.But it is not enough in practice. Therefore a new contract-precontract appears as a reply to this demand which is also the topic of this article.The first chapter outlines the precontract in accordance with the traditional legal science researching way.First,it begins with the definition of precontract and introduces some definitions of precontract of academic circle and limits the scope of the precontract into bilateral legal act.And then it proposes that 'precontract contract' has a tautology's mistake and precontract itself is enough to manifest what it represents.Second,this article sets forth the legal characteristics of precontract which define its legal nature and makes the foreshadowing for the legislation value of precontract below.Third,it introduces the categories of various precontracts in France and America made by academic circle and points out such categories have their own logical flaws and proposes a new two-level categories which bases on the practice.These two-level categories first divide the precontracts into the precontracts whose potency have been agreed and have not been agreed.The second level bases on the above division:in the situation of the precontracts whose potency has been agreed,the precontracts can be further divided into the precontracts of consulting potency(the litigants agree to consult with each other) and the precontracts of concluding potency(the litigants agree to conclude a later contract) according to the potency which has been agreed;in the situation of the precontracts whose potency has not been agreed,the precontracts can be further divided into the precontracts which may result into consulting(essential clauses are defective) and the precontracts which may result into concluding(essential clauses are perfect) according to the detailed degree of the content of the later contract which is provided in the precontract.These two-level categories are the logic starting point and also the basic of precontract legal system of this article.The second chapter demonstrates the value of the precontract legislation by examining the economic and legal theory and situation of the practice against the situation of no clause in the Contract Law and negligence ofprecontract by the academic circle in our country.On the economic theory,this article use the prisoner dilemma to describe the relationship and mutual act between the litigants during the consulting to prove that during this period the litigants are in full gambling and if there is no contract,they will take the maximizing their benefit as the guidance of their behavior which will definitely reduces their overall welfare. The litigants concluding the precontract for their own benefit results into the protection of mutual benefit objectively.This is the economic man's rational choice and also helps the litigants to construct the benefit community.On the legal theory,this article begins with freedom of contract and faith protection these two classical contract law basic value points, suggesting that precontract itself is the elaboration of freedom and the reply to the demand of faith protection.And then it further examines the flaws of classical consulting contract system, and points out that this system only applies to an independent transaction which based on the free capitalism.The development of today's market economy makes the litigants deeply depend on each other and the market environment is far more complex than that of free capitalism,so it is necessary to construct the precontract legal system.On the practice side, this article makes the description of the demand of the real market to also prove that it is necessary to construct the precontract legal system and in the developed countries the precontract is the integral part of contract law.The third chapter of this article,which bases on the legislation value of precontract described in the second chapter,begins to construct the detailed precontract legal system.This chapter can be divided into four parts:the first part is the requirements of the effectiveness of precontract.This article constructs the basic of precontract legal system by the way of examining the general requirements and the special requirements of effectiveness of legal act. The second is the scope of precontract.There exist different opinions on this issue.Some theorist suggests the scope of precontract only includes contracts which need passing something or some special forms to be effective,which will definitely reduces the value of precontract and the precontract in practice is far more beyond this opinion.Some theorists also suggest precontract exists in the real right contract.This article makes many replies to the main issues of the scope of precontract by examining the legal system and theory of the real right legal act of Germany and proposes that the scope of precontract should include all the debt contracts.The third is the time limit of the precontract.Precontract is the product of complex market environment and transaction conditions which should regard the arrangements of the litigants first and the law can only applies when there is no arrangement. The fourth is the regulating period of precontract.This article believes that precontract is only for the consultation or conclusion of the later contract and its period should only limit to this and cannot develop excessively.The fourth chapter of this article mainly talks about the potency and the violation responsibilities of precontract.This chapter and the third chapter belong to the detailed precontract legal system logically.But because it is the essential part of the precontract legal system,this article uses an independent chapter to elaborate its content.There are some opinions about the potency of precontract in the academic circle today:the opinion of must consulting,the opinion of must concluding;the opinion of dividing;the opinion of precontract with full content being the later contract.This article believes that all the opinions above have the same flaw which only deals with one side of the potency of the precontract.The right way is to set forth different clauses of the potency of the precontract according to different kinds of the precontracts.This article does so in accordance with the content of the second chapter. And finishing this part helps to discuss the violation responsibilities of the different precontracts which will be discussed in the later part.This article believes that there are only two kinds of violation responsibilities of precontract:specific performance and damages.The article deals with the fitness of the theory,feasibility of the practice and the efficiency of specific performance in order to construct the valuable legal system.So far this article has finished constructing the integrated precontract legal system and presents a chart to make it more visualized.The fifth chapter talks about harmony and the difference between the precontract legal system and other relative legal systems which include the legal systems of the later contract which is the result of precontract,the consulting responsibilities of contract,the deposit,and contracts with suspending condition.And then it makes the division of regulating range between them in order to avoid the unnecessary conflicts.The end of the article describes the clauses of precontract in nowadays legislations and the opinions of the precontract of the court in our country which demonstrate the necessity of precontract legislation and hopes the legislator to include precontract legal system into the formulating Civil Code.