The Judicial Application Of The Pre-contract

Due to the thorough implementation of the principles of autonomy of will and good faith in civil law,the pre-contract has been widely used in practice and has become one of the important ways for parties to enter into contracts.The promulgation of the The Judicial interpretation of the contract of Sale and purchase issued by the Supreme people’s Court on 2012 is of great significance to the practical development of the pre-contract in China,the article 2 first recognized the pre-contract legally and created the interpretation rules of the sales precontracts.However,the judicial interpretation stipulates that it is too general and abstract to meet the needs of the resolution of the contract in practice,which leads to the the occurrence of different judicial practice.This is not conducive to the protection of the interests of the parties,but also to the judicial authority and certainty.The deep reason of the frequent occurrence of practical disputes lies in the lack of depth in the research of the basic theory of the pre-contract,and the lack of a theoretical and independent theory system.Therefore,it is necessary to discuss the judicial application of the pre-contract,find out the focus of the problems in practice,and carry out theoretical analysis,and draw a practical point of view,which has great practical significance for the vigorous development of the pre-contract.In addition to the introduction and conclusion,the content of this paper can be divided into four parts:The first part mainly combs the legislation status of the pre-contract in our country under the existing legal system,and points out the problems in the judicial application of the precontract.According to the author’s carding and investigation,the pre-contract has lower legislative level in our country,which is the judicial interpretation to guide the practical trial,and the content is relatively simple and lack of systematization.The problem lies in the confirmation of the pre-contract and coplete contract.The validity of pre-contract and the remedy for breach of contract are controversial in theory,which leads to the different opinions of the court on the above issues in the practical trial,and the lack of uniform standard.The second part discusses the definition of the pre-contract and the contract.This part studies the nature of the contract from two aspects: the practical judgment and the theoretical construction.In practice,the nature of the contract is often determined according to the content of Article 5 of the "Judicial interpretation of Commodity Housing",which is supplemented by the parties’ inner intention,deposit clauses,whether to obtain a license for the pre-sale contract of commercial housing,and so on,but the standards adopted by the court in the case are not consistent.The author thinks that the definition of the pre-contract and the contract must take the inner meaning of the parties as the core judgment standard,and the completeness of the contract content as the secondary criterion at the same time.The third part discusses the choice of the validity of the pre-contract.This part starts the discussion from two angles of practical trial and theoretical discrimination.The Supreme people’s Court adopted “duty to conclude a bargain”,but the local courts did not strictly abide by the guidance of the Supreme Court,and adopted the “duty to bargain” more frequently.The author believes that “duty to bargain” has serious defects,while "decided by the content " lacks judicial maneuverability,from the purpose of the establishment of the pre-contract,and protecting the interests of the parties,it is more reasonable and feasible to explain the validity of the pre-contract by “duty to conclude a bargain”.The forth part study the liability for breach of the pre-contract.As the dispute between liquidated damages and deposit liability is small,this part only discusses the issue of specific performance and compensation for damages.And it is still discussed from the two parts of practical investigation and theoretical analysis.In the trial practice,whether it can be applied to continue to perform,whether or not to compensate for the loss of opportunity and interests is basically different,and even if both support or negate the application,the reasons for the court’s decision and the criteria for its determination are not consistent.In the author’s opinion,the contract of appointment should not be excluded from specific performance.In the case,the judge chooses whether to apply or not according to the specific circumstances.The damages are not restricted by the benefit of trust and should include opportunity loss.