On Contracting Fault Liability

With the social processes and development, law has been developing and being perfected. The scale held in the palm of Liberty Goddess is directing the direction of development in law. In pursuit of justice, law has to give its ears to deny itself and destroy itself. After German jurist Jhering put forward the theory of contracting fault liability one hundred years ago, the theory of consensus which once dominated in Germany collapsed overnight, the theory of consideration was not treated as sacred doctrine any longer due to the raise of Promissory Estoppel and the introduction of reliance interest. The consummation of law depends on the direction of justice and the power of social practice. The establishment of contracting fault liability makes the contract negotiation process prior to contract formation no longer a "blank land" where law don't protect for it, contract no longer means "the paper of agreement", but means the whole process under the principle of honest and good faith all along. And contractual obligations no longer mean the conducts of mutual performance, but a group of obligations composed by attached obligations including pre-contract obligations, and performance liability.In Contract Law of the People's Republic of China newly issued in 1999, contracting fault liability has been stipulated as a general principle, in Art.42, Art.43, Art.58, and Art.92, there are some certain stipulations on concept, scope, modes and compensation for damages in contracting fault liabilities, which has great significance for perfecting the structure of our obligation law and solving the related problems in practice. But due to those provisions not stipulated carefully and wholly enough, bad operation-ability in practice and difficult to control, some questions may occur, the scope ofcompensation is too wide or too narrow, there is a great deal of difference between amounts of compensation, for instance. Therefore, the legislation needs to be further improved accordingly.This paper introduces the theory of contracting fault liability in systematic, and aiming at the differences exists in sphere of studies nowadays; this paper puts forward his own viewpoints. The paper is divided into four sections.Chapter One introduces the concept and characteristics of contracting fault liability. Contracting fault liability involves in the courses of contract negotiation, due to one party's violating the pre-contract obligations required by the principle of honest and good faith, the party results in damages of reliance interest to the other party and such party is liable for damages. In the view of structures, contracting fault liability shall belong to the scope of contractual liabilities, as an expansion of contractual liability in time and validity. The legal characteristics of contracting fault liability include the following aspects: 1.the statutory nature of contracting fault liability. Contracting fault liability is the liability caused by violation of pre-contract obligations, this liability can't be caused upon the engagement between parties, and can't be excluded upon the engagement as well; 2.the nature of compensation in contracting fault liability. The purpose to establish contracting fault liability is to compensate the non-defaulting party's damages, and to adjust the interests of parties, not for punishment; 3.the undertaking mode of contracting fault liability is a single mode. There is only one mode of liability response, compensation for damages. What's more, in comparison with liability for beach of contract, tort liability and by analyzing their differences, this paper illustrates the reasonability and inevitability of the establishment of contracting fault liability and its independent, important and indispensable position in law. And fromthe perspective of legislative reasons, the establishment of this system accords with the requirements of legal practice and the pursuits for the values of legal fairness and justice. Chapter Two introduces the confirmation of contracting fau...