On The Legal Liability In The Phase When The Contract Has Not Taken Effect

According to the present designment of the contractual legal liabilities in our country, in the phases before the conclusion of a contract from its taking effect to its termination and after its termination, there are corresponding liabilities to restrict the conducts of the parties. For most contracts, the above three phases are coherent, but there are several contracts which take effect after their concluding, so there is a special phase when the contract is concluded but not takes effect yet, which is called in abbreviation "the phase when a contract has not taken effect " in this paper. In such a phase when the contractual relation is already established, one party is more liable to trust the opposite party, invests actively and prepares for the taking effect and fulfilling of the contract. If one party abandons the trust of the other, makes out conducts which violate the principle of good faith, such as tearing up the contract unilaterally disposing the object of the contract presumptuously, and so on, the other party' s advantage will be damaged very easily. So it is absolutely necessary to prescribe independent legal obligation and liability for such a special phase, which is called "the legal obligation in the phase when the contract has not taken effect" and "the legal liability in the phase when the contract has not taken effect" . But up to the present, this phase is almost a vacuum from the regulation of the law, there is no systematical and deep study about the corresponding liability in theory, and it is also a strange field in legislation. Such a status is not harmonious with the legal course of the market economy in our country.In order to deepen our understanding about the liability in such a special phase, and perfect the legislation of the contract law in our country, this paper primarily probes into this liability by the means of logic analysis and comparative analysis.The paper is divided into five parts, mainly discussing the following problems: firstly, on the base of limiting the point of start and termination of the liability and comparing it with the correlative liabilities, discovers its independence; in succession clarifies that the object protected by the liability is reliance interest, which is the investment and sacrifice made by the party who trust the opposite party reasonably, intending to get or make better use of the fulfilling interest; then focuses on the legal obligation in this phase, which is one kind of obligation of good faith with broad content and singular characteristics; and then discusses that the principle of ascribing should be the principle of negligent liability but not strict liability, which is the necessary demand of the principle of good faith; lastly, aiming at the actuality of the lack of legislation about the liability, proposes to establish a independent and integrative system of the liability in the phase when the contract has not taken effect in our country, by the way of adding clauses in the contract law.