Research On The Application Of Civil Liability For Breach Of Compulsory Contracting Obligations

The compulsory contracting system is the legal intervention of the state in the contract conclusion process based on the value considerations of equality,justice,morality and so on,and it realizes its own institutional value in the process of playing and balancing between private law autonomy and state control,the principle of freedom of contract and the principle of contract justice.Although after the promulgation of the Civil Code,the compulsory contracting system has general provisions,namely paragraphs 2 and 3 of Article 494,but the civil liability supporting the compulsory contractual obligation is still not clearly stipulated.In practice,disputes over compulsory contractual obligations are on the rise,and courts lack a direct and clear legal basis for the bearing of civil liability in such disputes,so it is necessary to clarify the applicable rules for civil liability for violations of compulsory contractual obligations to adapt to the rapid development of society.This paper will study the nature of liability,the subject of liability,the constituent elements,the reasons for exemption,and the way of bearing civil liability for breach of mandatory contractual obligations.The study of the application of civil liability for breach of mandatory contractual obligations is inseparable from the elaboration of basic theories.The first is to explore the basic connotation of mandatory contractual obligations,mainly including the definition and nature analysis of mandatory contractual obligations;Secondly,the legal basis of civil liability for breach of compulsory contractual obligations is analyzed,legal obligations and legal liabilities are relatively unified,and the establishment of civil liability for violations of compulsory contractual obligations plays a role in guaranteeing the realization of the value of the compulsory contracting system.Finally,the nature of civil liability for breach of mandatory contractual obligations is defined,and after commenting on the representative views of the academic community,this article characterizes this civil liability as a special contractual negligence liability,and argues this conclusion.The applicable rules on civil liability for breach of mandatory contractual obligations mainly include three aspects: the subject of bearing,the constituent elements,and the reasons for exemption.In the identification of the undertaking entity,the article classifies the undertaking entities in various situations according to the existing legislation,and analyzes the legal basis,obligation and liability connotation of these entities one by one in combination with many adjudication cases,and finally divides the civil liability bearers for breach of mandatory contractual obligations into three categories and eight subcategories.In the process of clarifying the constituent elements,combined with the relevant provisions on contractual negligence liability and judicial practice,it is determined that the constituent elements of civil liability for breach of compulsory contractual obligations include five items: the obligor and the counterparty have a contractual connection,the obligor violates the statutory compulsory contractual obligation,the counterparty suffers damage,the obligor is at fault,and the fault and damage have a causal relationship;The determination of the reasons for exemption mainly includes three types of offer: illegality or unreasonableness,force majeure and optional contracting counterparties.Throughout practice,there are three deficiencies in the application of the rules applicable to civil liability for breach of mandatory contractual obligations.The most critical problem is that there is a lack of clear provisions on the way in which civil liability for breach of mandatory contractual obligations is assumed,and in judicial practice,the effective judgments of courts have different bases for determining this civil liability,and lack uniformity.The second problem is that looking at the determination of this subject of civil liability in judicial practice,there is a trend of expansion,and there are different judgments on the determination of individual subjects.The third problem refers to the fact that in judicial practice,the determination of this cause of exemption from civil liability has shown an expansion trend,and the claim of some exemption grounds may be unreasonable.In view of the above problems,this paper puts forward suggestions for improving China’s civil liability for breach of compulsory contractual obligations,mainly including three aspects: the way of bearing,the subject of bearing,and the reason for exemption.At the beginning,combined with the improvement of the relevant provisions of China’s Civil Code,the way to bear civil liability for breach of compulsory contractual obligations was clarified,and the competition between civil liability and administrative and criminal liability was advocated to establish a liability mechanism that was "civil as the main and administrative and criminal as the supplement";Then,the issue of whether the subject matter in dispute is included in the field of compulsory contracting is discussed,so as to further clarify the subject of civil liability for breach of compulsory treaty obligations in China.And according to the division of subjects,try to construct typed responsibility rules;At the end of this section,the reasons for the unreasonable expansion of the exemption reasons are analyzed,and suggestions are put forward to improve the criteria for determining the exemption causes and to concretize the exemption grounds from the institutional level.