A Study Of Compulsory Contracting System

The freedom of contracting is one of three fundamental principles of modern private law and the core of private law autonomy. And same time the freedom of contracting is the supreme rule in contracting and the insurance of reaching justice. But the advantaged are tend to abuse the freedom rights if the freedom of contracting are overused, which will lead to oppress the disadvantaged and to infringe people's interests and to touch the limitation of morality. This kind of situation is Far away from the original purpose for the freedom of contract. Hence we need to remedy the freedom of contract. So at this time it came into being compulsory contracting, which can balance the two parties'position by forcing the advantaged to bear the corresponding obligation. Then we will achieve the social justice. Looking around many countries'law system, compulsory contracting in the national legislation has been recognized and gradually developed. However, the study on compulsory contracting still has many controversial issues that need to be solved. Current academic discussions mainly focused on the definition, types of compulsory contracting, application areas, the responsibility of breaching the obligation of compulsory contracting and how to undertake this responsibility. This paper tries to analyze the compulsory contracting further by discussing all kinds of views comprehensive, then attempts to bring about my own points.Besides the preface and conclusion, this thesis includes two parts:The first part is about the theory and definition of compulsory contracting. At First, this thesis analyzes the theoretical basis of compulsory contracting; pointing out that the emergence of the compulsory contracting don't break the freedom of contracting. On the contrary, the compulsory contracting is to defend the freedom of contracting. Its aim is to protect the public's basic rights to life and the bottom line of social order and to prevent the advantaged to abuse the rights for achieving substantive justice. Secondly, this thesis analyzes the definition of the compulsory contracting. By comparing the different points of view, this thesis analyzes the differences between the narrow sense and the broad sense in compulsory contracting. Then author bring about the definition of the compulsory contracting and clarify the reasons why the writer support the narrow sense definition. On this basis, this thesis describes three problems that should focus on for grasping compulsory contracting. And the author summarizes the characteristics of compulsory contracting and distinguishes this with another legal relationship. Then this thesis introduces the Category of the compulsory contracting in the basis of making definition and characteristics clear, and then describes the applied areas, analyze the reasons why the order contract, Administrative Contract, Motor vehicle third party liability insurance and Preemption Contracting are not belong to compulsory contracting, which are often mistaken for the compulsory contracting.The second part mainly discuss that the responsibility and consequences for violation of compulsory contracting. This sector analyzes the difference about the three views on the nature of responsibility: fault liability, tort liability and impendent liability. Then writer describes the proof that stand behind the tort liability. Then this thesis introduces the way of undertaking the responsibility violating the compulsory contracting: restitution, compensate damages, apology, and analyzes the problem about compensation for mental injury. In addition, this thesis discusses the sequence of way to undertake the responsibility above, and at last writer brings forward the principles to apply this ways orderly.