On The System Of The Fault Liability In Signing Treaty

Since Rudolph von Jhering, a Germany jurisprudent, raised the fault liability in signing treaty theory more than 100 years ago, every country has established the system of the fault liability in signing treaty in various forms in legislation. That system explicitly stipulates that during the course of entering into a contract, if the contracting party's action violates the preliminary contract duty and resulted in losses to the other contracting party, then the contracting party should shoulder the responsibility of the compensation for damage. On the basis of consulting the advantageous legislation experience and the successful case theory of the two legal systems, the Contract law of China, considering the practical condition of China, gives a quite completed stipulation on the fault liability in signing treaty the first time. It has great significance in the perfecting of the system of the Law of Obligation and solving the relevant problems in practice. But it's hard to operate and maybe leads to the consequence of the compensation being too broad or narrow and the amount of indemnity being quite different, because the stipulation of the Law of Obligation is only in principle and fairly simple and lacks of the practical operating capacity, thus it should be further improved.The article, consisting of four parts, mainly explores the focus issue of the system of the fault liability in signing treaty by comparing and analyzing. In the first part, it inquires into the basic theoretical issues on the fault liability in signing treaty. It inquires into the connotation and character of the fault liability in signing treaty and introduces the original and development of this theory and its influence to the legislation and case theory of every country. In the second part, by comparing and analyzing the infringing act theory, the juristic act theory, the legal provisions theory and the principle of good faith theory, it holds that the theoretic basis of the fault liability in signing treaty is theprinciple of good faith, and on that ground, it expounds and proves the constitutive elements of the fault liability in signing treaty. In the third part, from the time, space and the effects over person three aspects, it researches the application range of the fault liability in signing treaty. Meanwhile, it delimits the compensation range of the fault liability in signing treaty and explicitly holds that trust interest is the object that the fault liability in signing treaty protects. And, the compensation of the trust interest should not overweigh the performance interest, except the condition that the fault liability in signing treaty being concurrent with other liability. In the fourth part, it expounds the contemporary legislation condition of the fault liability in signing treaty around promulgating the contract law of China and analyzes each respectively. And on that ground, it, consulting the legislation abroad, explores perfecting the system of the fault liability in signing treaty in the points of view of legislative suggestion and judicature application, thus to evoking the brilliant ideas of other experts.