Research On Appointment Contract System

With the development and prosperity of modern market economy,for the fixed trading opportunities,occupy the market opportunities,the contract in practice is more widely used.However,from the phenomenon of "different judgments in the same case" in recent years,it can be seen that there is no systematic legislation and the level of legislation is low in the legal system of appointment contract in China.In this paper,starting from the judicial cases over the appointment contracts,according to the problems existing in the current appointment contract in decided to explore the appointment contract,liability for breach of contract assume the theory behind the controversy,combined with the use of different theories in the practice and draw lessons from foreign experience in the treatment of the booking of the contract,in order to find a solution to make an appointment contract in decided and default relief,on the basis of the current our country to make an appointment in the Civil Code of the provisions of the contract to make evaluation and put forward corresponding Suggestions,so as to solve an appointment contract dispute in practice,realize the unification of judgment standard.The article is divided into four parts.The first part is mainly about the basic theory of reservation contract.The first section firstly sorts out the concept of appointment contract,the second section analyzes the independence,agreement,certainty,constraint and expectation of appointment contract one by one,the third section briefly describes the requirements for the establishment of appointment contract,the fourth section distinguishes the difference between appointment contract and this contract,letter of intent and other related concepts.The second part further analyzes the phenomenon of "different judgments in the same case" in judicial practice by sorting out the provisions of the existing laws of reservation contracts in China,and leads to the reflection on the current theoretical disputes.The first section sorts out the deficiencies and existing problems in the legislation of open contract in China,which is mainly reflected in the Civil Code,which avoids the validity determination of open contract and the remedy for breach of contract.The second section analyzes the differences in the judicial practice on the validity determination and the remedy for breach of contract.The judge decided to make an appointment contract has tried two different ideas: the parties of the contract of this about owes a duty of good faith negotiations about obligation,or the parties must conclude the court with respect to the manner of appointment contract liability for breach of contract for difference can mainly divided into specific performance and specific performance,and the scope of damage compensation dispute mainly embodied in the "trust interests" or "to" the applicable conditions.Section three explores the theoretical reasons behind judicial disputes and legislative avoidance,sorts out three different effectiveness theories of "must consult","should conclude a contract" and "content decides" in the aspect of validity determination,and analyzes the disputes on whether the breach of appointment contract can be applied to compulsory performance and the scope of damages.The third part USES the method of comparative analysis,introduces the provisions of the foreign appointment contract legal system,and expounds its enlightenment to China’s legislation.In the first three sections of this part,the author compares the countries of civil law system and common law system from three aspects: legislation,validity determination and liability for breach of contract.According to the analysis,we can learn from the ideas provided by American Farnsworth on the validity determination: the appointment contract area can be divided into the contract to be negotiated and the contract with pending conditions,the former has the obligation to negotiate and the latter has the obligation to conclude.On the issue of liability for breach of contract,the relevant provisions of the appointment contract system in Germany and the United States are also of reference significance to China.In the fourth part,by summarizing the first three parts,article 495 of the Civil Codee of China is evaluated in the first section: this article is of progressive significance in the legislative style and the scope of application,but it is lacking in the provisions of validity determination and remedy for breach of contract.In view of the shortcomings of article 495,section ii focuses on the theoretical analysis of the contract effectiveness and liability for breach of contract.Through the comprehensive analysis of three different theories,this paper thinks that China should adopt "content determination theory".In terms of whether the liability for breach of contract is applicable to compulsory performance,this paper holds that the non-breaching party can ask the breaching party to conclude this contract when the contract content has the necessary provisions.If the appointment contract does not have the necessary provisions,the non-breaching party has no right of claim for compulsory performance.Similarly,when an advance contract has the necessary provisions,the indemnity shall include the performance interest of this contract;Otherwise,the damage compensation is mainly based on the trust interest of the contract.In view of the current legal provisions of appointment contract in China,some Suggestions are put forward on the legal provisions of appointment contract validity determination and remedy for breach of contract.