Research On Remedies For Breach Of Pre-contract

With the rapid development of social economy,the process of concluding contracts has become increasingly complex.Then a variety of appointment contract will enter our vision.However,due to the rare provisions of relevant laws and regulations,reservation was only involved in article 5 of the interpretation of the supreme people’s court on several issues of applicable law in the trial of commercial housing contract dispute cases in 2003 and article 2 of the interpretation of the supreme people’s court on applicable law in the case of commercial housing contract dispute cases in 2012.Even so,the above judicial interpretation does not clearly explain the validity of the appointment contract,the way of assuming the liability for breach of contract,and the way of relief.Therefore,there are many disputes and disputes in judicial practice and theoretical circle.In order to resolve disputes and unify the application of law,it is necessary to conduct a detailed and in-deqth study on the reservation eontract system,5sothat it can be applied in legal practice efficiently and regularly.For an appointment contract default problem research,should make an appointment contract,namely the effect of the contract of appointment and is the precondition for the default relief,make an appointment to the effectiveness of the contract is the foundation of the default relief,and combined with the case of the provisions of the judicial interpretation,in effect as well as the furnher academic achievements of predecessors’ appointment contract default way of relief.In addition to the introduction and conclusion,this paper mainly includes five parts:The first part is to ask questions.Through two relevant cases,the author will reveal the main problems and disputes existing in judicial practice about the remedy for breach of contract of appointment.The disputes mainly focus on the validity of appointment contract,the confirmation of breach of contract and the confirmation of the scope of breach of contract damages.The second part mainly introduces the basic background of reservation contract,including the concept of reservation contract,its discrimination and analysis of similar documents,and its correlation with this contract.It also classifies reservation contract and discusses why the parties should make an appointment to conclude relevant contracts.The third part discusses the effectiveness of reservation contract.This problem is the core of the remedy of reservation contract.There are four theories about the validity of an appointment contract in China,namely the theory of good faith consultation and the theory of contracting,which are regarded as the theory of this contract and the theory of content decision.The reason why they are divided into different theories is that scholars have different understandings of their connotations.The argument between the theory of negotiation in good faith and the theory of contracting is particularly fierce.Good faith consultation said that the effectiveness of the appointment contract is mainly the effectiveness of consultation,and there is no ability to force the conclusion of a contract.And,ought to conclude a contract to say to think,the effect of appointment contract is the consultation that asks good faith to pass between parties not only,and have the effect of compulsive conclude a contract.After summarizing the existing academic achievements and comparing the cases,the author thinks that the theory of contracting should be more reasonable and more consistent with the significance of the system design of appointment contract.Should conclude a contract to say better balanced the interest between party concerned,avoided party concerned painstakingly is venal,violate good faith.In addition,acknowledging that the appointment has the effect of forcing the conclusion of this agreement can promote the rationality between the parties.The parties are required to be very cautious in signing the appointment.Once the contract is signed,the obligations to be assumed by both parties are clearly defined,which helps to avoid the occurrence of malicious negotiation in the name of good faith negotiation.In this part,the author also analyzes the independence and binding force of the reservation contract,so as to detenmine the independent status that the reservation contract can be established and take effect without depending on the master contract,that is to say,independent relief can be applied to the breach of the reservation contract.In the deconstruction of the relative independence of the appointment contract,it is confirmed that the binding force of the appointment contract is embodied in the good faith negotiation of the contracting parties and the parties need to finally conclude the contract,otherwise,they need to bear the liability for breach of contract.The fourth part is the analysis of the status quo and comparative law of the remedy for breach of contract.In this part,the author mainly USES empirical research method and comparative analysis method.This paper studies the bulletin cases of the supreme people’s court,the "typical" cases that have been published in the press,and the cases of reservation contract disputes of this year,to explore the remedies and why they are applicable.In the aspect of foreign comparative law,the author studies thereservation system in civil law system and Anglo-American law system respectively.It is found that Germany,in the civil law system,has the strictest remedy for breach of appointment contract.According to Geraman civil law,the parties have the right to enforce the contract according to the appointment contract.However,the Anglo-American law system has a relatively cool attitude towards the reservation system.Since there is no concept of appointment in Anglo-American law,we adopt a one-size-fits approach to its effectiveness and relief.Either the relevant preliminary agreement shall be deemed to be a binding formal contract and shall be treated in accordance with the performance and remedy of a general contract,or its validity shall be deemed to be no contract between the parties and there shall be no remedy.The fifth part mainly discusses the way of remedy for breach of contract.Due to the similarity between the establishment time and compensation scope of the pre-contract and the liability for breach of contract,the author first clarified the difference between the liability for breach of contract and the liability for breach of contract of pre-contract.The basic idea that the default of the reservation contract should be relieved independently is established.Since the appointment contract itself has its independence,the remedy for it in addition to the liquidated damages and deposit liability may be agreed in accordance with the appointment contract itself for the continued performance under the contract and the cancellation of the breach of contract compensation is worth careful study of the contract discussion.As to whether the appointment contract can be continued to perform,there are tit-for-tat positive or negative views.After thinking about the viewpoint of affirmation or not affirmation and combining the results of the previous several parts,the author thinks that although both theories are reasonable,the author is more inclined to affirm that there are indeed some objective obstacles that are difficult to overcome in practice,and it is meaningless to force both parties to sign a contract.Therefore,the author believes that,on the question of continuing to perform,we should take the affirmation of continuing to perform as the principle,for the case that we really can,t conclude a contract,the parties should consider other ways of relief.On the issue of damage compensation,based on the previous part of the case study,the author believes that the damage compensation for breach of contract of an appointment contract should be based on trust interest,and the opportunity interest of the non-breaching party should be compensated at the same time.The main innovation point of this paper mainly has two aspects.First,the authorcombines the collection of bulletin cases,typical cases and common cases at the same time for analysis.This paper summarizes the main ways of remedy for appointment contract in the field of judicial practice in China,as well as the actual situation and reason of continuing performance and the actual scope of compensation for breach of contract.Second,combined with the data and previous academic achievements,the author did not adopt all-or-nothing identification mode on the continued performance of hot confirmation appointment contract,but carried out elastic identification,and considered that the confirmation mode of positive continuation of performance was the principle and exclusion of continued performance was the accidental identification mode.