The Scope Of Forced Contracting Application

Forced contracting is a special way for conclusion of contracts.Different scholars have opposite cognitions for the scope of forced contracting application,there are theory of generalized scope and theory of narrow scope.The dispute focus on two questions: firstly,whether the preemptive right belongs to the scope of forced contracting application;secondly,whether the right of equality and anti-discrimination lead to the obligation of forced contracting.Whether the preemptive right belongs to the scope of forced contracting should be considered on the nature of the preemptive right,and the nature of the preemptive right is the right of formation,there is no space and necessary for the forced contracting.Nowadays,the judicial judgment of the preemptive right is the right of claim with the obligation of forced contracting,which actually fallow the understanding and application of the judicial interpretation by the Supreme People's Court.It can not deny the common theory of the preemptive right.The way by the right of formation can protect the preemptive right,and the way by the forced contracting does not satisfy its value.The right of equality and anti-discrimination can`t lead to the obligation of forced contracting.Firstly,Chinese scholars seldom put it into the scope of the forced contracting;Secondly,there are no cases about the relationship between the forced contracting and the right of equality in our judical practice.As a special way for conclusion of contracts,we should define the scope of the forced contracting by the freedom of contract and the value of the forced contracting.We must limit the scope of the forced contracting because it is the maximum intervention to the freedom of contract.The values of the forced contracting are to protect public interests of society,protect vulnerable groups and protect citizens' right of life and health,the scope of the forced contracting must satisfy these values.Based on these analyses,the scope of the forced contracting application must be narrow: firstly,the forced contracting must be based on the articles of law;secondly,the forced contracting is about the conclusion of contracts,the preemptive right andthe right of equality is out of the scope of forced contracting;thirdly,we must define the scope of forced contracting by the value of forced contracting.Finally,according to the articles of Chinese law,the scope of forced contracting include these four situation: 1.obligation of forced contracting by the common carrier;2.obligation of forced contracting by the power,water,gas or heat supplier;3.obligation of forced contracting by doctors and hospital;4.obligation of forced contracting of the compulsory liability insurance.