| The negligence system of contracting is an important means to regulate the market order,protect the legitimate interests of transaction subjects,and balance the freedom of contract and the principle of good faith.To ensure the stable development of the market.In the "Contract Law" promulgated in 1999,our country made a preliminary elaboration on the liability for negligence in contracting,and made provisions on the compensation for negligence in contracting,thus formally establishing the liability system for negligence in contracting in legislation,but the scope of compensation depends on the amount of compensation.The definition is rather vague.The provisions of the Civil Code promulgated in 2021 on liability for negligence in contracting are the absorption of Articles 42 and 43 of the Contract Law,and there is no further explanation on the basis of the Contract Law.Therefore,it is necessary to This paper studies the application of the negligence liability system in the judicial practice of our country,discovers its existing problems,and clarifies the scope of compensation for negligence liability for contracting.Negligence in contracting means that in the process of concluding a contract,one of the contracting parties has violated the pre-contract obligations arising from the principle of good faith,causing the other party to suffer the loss of reliance interests and should be liable for damages.Since the law does not clearly stipulate the scope of damages for negligence in contracting,the academic circles have different views on the interests protected by negligence in contracting,whether reliance interests include indirect losses,and the limits of reliance interests.There are two viewpoints on the interests protected by fault liability for contracting.The first viewpoint is that the scope of prior contractual obligations must include protection obligations,the trend of tort liability being transformed into contractual liability,and the two systems can be used in competition with each other.The scope of compensation for contractual negligence must include inherent interest.The second one holds that the essence of the establishment of the system of negligence in contracting is to maintain the interests of reliance,so the scope of compensation for negligence in contracting is limited to the loss of such interests.There are also different views on whether the reliance interest includes indirect losses.The first viewpoint is that the reliance interest should be reasonable and the balance of losses and gains can be determined,and only the direct losses caused during the contracting period are claimed to be compensated.Another point of view is that the scope of compensation for contractual negligence should also include indirect losses,which is based on the elaboration and interpretation of the scope of compensation for damages in current judicial interpretations and judicial practices in my country.As to whether the scope of compensation for negligence in the contract should be limited to the performance of interests,one view is based on the expected purpose of the contract and the principle of risk balance,and advocates that it should be limited to the performance of interests.Another view points out that there are often cases in judicial practice where the loss of reliance interests exceeds the benefits that can be obtained when the contract is performed.Therefore,limiting the compensation of reliance interests to performance interests will inevitably lead to loss of protection of reliance interests.Therefore,it is claimed that the scope of compensation for contractual negligence is not limited to performance benefits.By selecting 261 sample cases and conducting empirical analysis,it is found that there may be the following dilemmas in the judicial application of the contracting negligence system: First,the nature of the contractual negligence liability is not clear,and there are two views on the nature of the contracting negligence liability theory of tort liability and independent liability theory However,before the law is applied to the law,a qualitative analysis of the nature of the contractual negligence liability should be carried out first.Only by determining its nature can it be clear whether the inherent interest belongs to the object of the liability compensation,and what rules are applicable to the compensation;the second is the scope of the reliance interest compensation.The definition of its limits is not clear.Regarding whether the reliance interests include indirect losses and whether they can exceed the performance interests,the courts in different regions have different judgments in the same type of cases,resulting in the phenomenon of different judgments in the same case;third,the rules for determining damages for contractual negligence are single.,with the increase in the complexity of the cases of contractual negligence liability,the single use of negligence liability is too rigid,and cannot effectively protect and safeguard the legitimate rights and interests of victims.Fourth,judicial judgments vary too much.The current courts have not formed a unified standard of discretion for the scope of liability for negligence in contracting a contract.Therefore,when hearing such disputes,it is difficult for judges to follow a unified standard to make rulings,and they often use discretionary power,which inevitably has a certain subjective color.,resulting in different judgments.In our country’s trial practice,we try to put forward relevant suggestions for the problems faced by our country’s contractual negligence liability system in judicial application: First,it is clear that the contractual negligence liability is independent.The legal effect of negligence liability and tort liability,it is more appropriate to consider negligence liability as an independent liability;the second is to clarify the scope and limit of compensation for loss of reliance interests,including the standard of proof for distinguishing between damages and lost interests,The reliance interests should include indirect losses and the losses of reliance interests should be limited to the performance of interests;the third is to determine the multiple rules for the determination of compensation for the loss of contractual negligence liability,and determine that one of the necessary conditions for the party to assume the responsibility is that the party is at fault subjectively,explaining the contractual negligence responsibility The principle of the rule is fault liability,and the negligence rule,profit and loss rule,and derogation rule in tort law can be analogized to the negligence liability for contracting;the fourth is to pay attention to the role of judicial interpretations and precedents.Under the circumstance that the regulations are not perfect and the legal remedies for the contracting parties are not comprehensive,the courts at all levels in China,especially the Supreme People’s Court,should timely issue the guiding cases on the scope of compensation for negligence in the contract,so that judges across the country can have more reference.When necessary,look for similar cases,refer to the rulings of other judges,and make better judgments based on guiding cases,so as to facilitate the trial work,thereby improving the unity,scientificity,impartiality and authority of China’s judiciary as a whole. |
