The Study On The Precontract System

In modern society, with the increasing complexity of market trading activities, a large number of multi-type contracts have emerged. Based on the different perceptions of the contracts'nature and effect, many divergences has aroused both in theory and practice. As a special type of contract, pre-contract is reached between the two parties through negotiation, aims to protect the final completion of this contract. And as a corresponding contract with the contract itself, less attention has been paid in its theory and there is no reference for the legislation, therefore, in reality, it often causes numerous of confusion with the contract, which produces many judicial disputes and causes a lot of trouble to the parties. In fact, long before, foreign legal theory has given research to the pre-contract and wrote it down in the statute books, From the initial sale and consumption contract, individual loan contracts and other specific contracts to the general obligation law or the general principles of law contract, the application scope of the pre-contract system was expanded step by step, which eventually gave it the same legal status as the contract. Although different countries adopt diverse legislative patterns to the pre-contract, it will not affect the reorganizations to its system, However, in our country, not only because of the insufficient study of the pre-contract, but also due to the situation of being no legislative recognization, including the General Rule of the Civil Law and Contract Law, people are always in a mess to apply the pre-contract system. Therefore, in order to meet the needs of trading activities and improve the theoretical system of contract law, it is necessary to stipulate the pre-contract in terms of legislative aspect. Based on this understanding, from the analyses of author, this paper put forward some ideas for the pre-contract system in order to make it properly applied in our country.This paper uses historical analysis, comparative analysis and other methods to analyze the pre-contract system, and it includes four chapters specifically:The first chapter is an overview of the pre-contract system, Firstly, this article make a clear definition of the pre-contract through the historical study at home and abroad. Meanwhile, it distinguishes the differences between pre-contract and other confusing law concepts, Thus to summarize the legal characteristics of the pre-contract in itself, Furthermore, it also analyzes the various manifestation of the pre-contract, through comparative analysis, the author accepted the theory of eclecticism, which holds that the manifestation of pre-contract after it was set should based on the specific circumstances of this contract, and in order to reduce the complicated dispute-resolved procedure and lesson the pressure of finding evidence, The law could make regulations in special requirements, and the rest of the contract business should be arranged by two parties.The second chapter illustrates the constituents of the pre-contract and its application area. Firstly, following the analysis of the previous chapter, in terms with the particularity of the pre-contract, this article summarizes the three conditions for a successful pre-contract., of which the author attaches great importance to the point that the content of pre-contract does not need to include specific provisions of this contract. Secondly, according to theory of contract law, the establishment of a contract does not necessarily take effect; therefore after the analysis of the general contract establishment theory, the author makes a conclusion to the main conditions of an effective pre-contract.Finally, the scope of the pre-contract is not unlimited, and only by adopting a reasonable provision can we make it show its practical value as much as possible. And accordingly, this article will analyze the application scope of the pre-contract, if limitation is not applicable in some certain circumstances, in principle, the free negotiation should be made by the two parties.The third Chapter discusses the legal effect of the pre-contract. What the real legal effect does the pre-contract brings about is a controversial issue in theoretical fields, meanwhile, it is also the key point to investigate the value of the pre-contract system, in this article, on the basis of theoretical research, the author firstly focuses on analyzing the making an appointment on the basis of theoretical research, the author analyzes the theory of must negotiate and must sign. Secondly, the pre-contract's object lies in the negotiations between the two parties, no matter we adopt what kind of the theory just mentioned above, the fiduciary consulting duty of the parties cannot be waived. Lastly, although being a form of contract, the pre-contract distinguishes enormously from the contract, after the careful analysis of the methods of compensation, in the aspect of violating pre-contract duty, the author agrees on the money-remedy way and excludes the way of actual performance.The fourth chapter discusses the legislative status quo of pre-contract system in our country and its improvement measures. This system is currently in a rather awkward position in the theory of contract law, not only because of the shallow research but also due to the reason that it is not included in the legislation area. However, in reality, more and more pre-contract are involved in the transactions, which generate more disputes. Besides, combine with its value and significance, it's imperative to establish the pre-contract system and add it into the scope of legislative consideration. On the basis of analyzing the pre-contract system in detail and drawing on the experience of the legislative models abroad, the author put forward ideas for the pre-contract legislation in our country.