| The freedom of contracting is regard as the core of all systems of classic contract law theories. The classic contract law takes "only the will" as a soul. The freedom of contracting means complete, absolute freedom and manifests formal justice. But the complete freedom of classic contract law doesn't mean all good things. If we emphasizes the formal equality and freedom of contract parties too much, it will not only counteract with legal just goal, but also intensify the social contractions thus to cause social turbulence. The unequal positions and the lose of interchange as a result of economic potentiality between the main bodies causes the civil law idea change from formal justice to essential justice. With the rectification of freedom of contracting and the practice of essential justice of contracting, the compulsory contracting appeared. The compulsory contracting is playing the indispensable role in the practice of contract justice, in the protection of powerless communities' benefits and the maintenance of social public interests, and has become noticeable phenomenon in the modern contracts. But our law experts put few attention to this question. This article attempts to discuss the compulsory contracting legal system and give propositions to consummate our compulsory contracting legal system. Besides the introduction, the conclusion, the text is divided into four parts.The first part inspects the compulsory contracting legal system historically. First the author introduces the connotation of the classic freedom of contracting and its manifesting in real laws, and gives appraisals to the classic freedom of contracting. Then the author introduces the collapse of classic contracting pattern and the modern contracting theory of essential justice. From the abstract personality to the concrete personality, from the complete competitive market to the incomplete competitive market appearance, classic contracting pattern collapsed. Finally the author introduces the production, development and value of the compulsory contracting. There are regulations about the compulsory contracting system both in the continental law system and the common law system. The compulsory contracting embodies rectification to the freedom of contracting by contract justice. It plays an important role in the protection of powerless communities' benefits and the maintenance of social public interests.The second part deals with the basic theory of the compulsory contracting legal system. In this part, the author discusses the concept of the compulsory contracting first. After the commendation to the narrow sense theory and general sense theory, the author limits the concept of the compulsory contracting and analyzes its characteristic and the discrimination from other concepts. Then the author carries on the type-analysis to the compulsory contracting legal system. According to different sign brigadiers, the compulsory contracting can be divided into compulsory invite and compulsory promise, direct compulsory contracting and indirect compulsory contracting, relative compulsory contracting and absolute compulsory contracting.Finally the author introduces the theory basis of the compulsory contracting--thegood vulgar principle, the substantive justice and the protection of the powerless communities, the prohibition of the right abuse.The third part is about the present situation and the flaw of the compulsory contracting legal system in our country. The author analyzes its legislation present situation and the legislation flaw from the applicable scope, the suitable condition, the receiver's pledge time and the legal liability of violating it. Through the analysis, the main legislation flaws includes: the applicable scope and the suitable condition are imperfect, no clear regulations about the receiver's pledge time, the receiver's legal liability is not perfect when he doesn't fulfill his duty, lacks of general provisions about the compulsory contracting legal system.The fourth part gives legislation suggestions to perfect the compulsory contracting legal system in our country. According to the legislation flaws, the suggestions should include: making the applicable scope and the suitable condition clear, making the receiver's pledge time clear, consummating the legal liability regulations of violating compulsory contracting duty, adding general provisions of the compulsory contracting system. |
