The Research On Pre-Contract

With the high-speed development of the current market economy, the pre-contract cameinto being.Although its transactions in the market has strong vitality makes it increasinglyimportant in the judicial and legislative practice, our laws but there is still facing a reservationcontract system, the legislative level, the system the undistributed still the status quo.In thecontext of the Supreme People’s Court announced on June6,2012"interpretation of theapplicable law cases on the trial of the contract dispute",the author writes this article in thehope of helping to establish an appointment and legal system. Meanwhile this will provide areasonable basis for practical operation.This article,in addition to introduction, includes four parts：The first part mainly contains the concept and characteristics of the pre-contract. sectionI, throught the understanding the concept of pre-contract, we know its nature---contractssigned by the parties to prepare for future.Section II, from the relationship between thecontract and pre-contract, it discusses the pre-contract’s all sorts of unique legalcharacteristics, such as independence, duration, content specific and clear, belongs to thepromise into a contract with this about the subject matter of the contract, the differencebetween the pre-contract and contract.The second part clarifys theoretical basis and system value of the pre-contract from thefundamental principle and the advantage of system.Section I, from freedom of contract,honesty and trust protection principles, analyses the theoretical basis of the pre-contract.Section II illustrates that pre-contract has tremendous system value and plays a irreplaceablerole in market economy from many aspects.such as:being able to lock the transaction object,fixing trading opportunities, optimizing the allocation of resources, having financingguarantee function and avoiding the financial risk triggered by situation changes and so on.The third part discusses the legal effectiveness of the pre-contract. The problem ofpre-contract’s legal effectiveness has always been the focus of civil law scholars and experts who have all different opinions and are unable to reach a consensus.The first section of thispart list the current four main doctrine views about the pre-contract’s legal effectiveness---"must negotiate,""should Contracting","distinction ". Section2, the writer show his ownstandpoint. consolidating judicial interpretation of the Supreme People’s Court in recent yearsand the court’s specific operations in practice.The writer eventually adopts "shouldContracting", evaluates the other three theories and further demonstrates "should Contracting" more legitimacy and rationality.The fourth part, which is the core focus of this article,mainly focuses on civil liabilityfor violating the pre-contract.The first section briefly analyses the principle of attribution and the nature ofresponsibility about violating the pre-contract, therefore clearing the rescue direction aboutbreach of contract and pre-contract. Specifically, the author first analyses and compares twomain expansibility principles:the principle of strict liability and fault liability principle.According to pre-contract ’s mandatory contracting effectiveness,the writer thinks it is moresuitable for pre-contract to adopt principle of strict liability. Then, from responsibilityprinciple, the basis for liability,system purpose and role and the way of bearing responsibilityetc, the author identify and distinguish the differences between liability for breach of contractand appointment of the approximately Contracting Liability for Negligence etc.The writercomes to a conclusion that violating the pre-contract shall bear the liability for breach ofcontract. Section II focuses on various responsibility forms of violating the pre-contract. Sincethe violation of pre-contract shall bear the liability for breach of contract, then it will be a verytricky problem to understand and apply all sorts of bearing methods about breach of liability.In this section, the author has a concrete analysis of the main problems encountered by avariety of responsibilities in the judicial practice.such as: Whether it can be applied tocontinue to fulfill、the overall scope of damages and specific content、 how to deal with thenature of the deposit and the amount of the deposit,etc under the circumstances of havingagreed or not agreed liquidated damages.The author put forward his own opinions anddiscourse them as well hoping to provide the solution of practical problems.