Compulsory Contracting In The German Law

The principle of Contract Freedom from the Private Autonomy is one of the basic principles of Contract Law. However, Contract Freedom should be limited because of Contract Justice. Compulsory Contracting is a restriction of Contract Freedom. When there is a great disparity between the supplier and the consumer, in particular the supplier is in a monopoly status, Compulsory Contracting plays an important role in protecting the individual interests and balancing the interests between the parties. In Germany, Contract Freedom is guaranteed by the Constitution, Article 2, Paragraph 1 provides the free development of human rights, Contract Freedom is one of its content. In this sense, Compulsory Contracting is a violation of the constitutional right, so the regulations of Compulsory Con-tracting are extremely important.Many German scholars have done on the definition of Compulsory Contracting and the most classic one is from Hans Carl Nipperdey. In Germany, Compulsory Contracting is not expressly provided by law, but is contained in a variety of legal norms and is wide applied. With regard to some of the basic problems of Compulsory Contracting, it has gradually unified in theory and practice, but related debate has never stopped. The German scholars tend to classify Compulsory Contracting into the Tort Law, and also try it in the Contract Law, but neither in Contract Law nor in Tort Law can man find a proper legal basis to match the application condi-tions of Compulsory Contracting exactly.Therefore, the author sprouted to find a new legal basis in the German Law for the Compulsory Contracting. It can be seen from the definition of Nipperdey that the Contracting Obligation based on balancing the interests of the parties has the legal protective character, which makes the "United Legal Protective Relationship" theory based on all the legal protective ob-ligation into the author's attention. Although the theory is not presented for Compulsory Contracting, but because of the openness of this theory, the author will try to make the "United Legal Protective Relationship" theory and the "Reliance Responsibility" because of the breach of legal protective obligation to be the theoretical basis for Compulsory Contracting and iden-tify their strengths compared with the Tort Liability and Contract Liability in order to provide a more complete theoretical support for the realization of Compulsory Contracting.This thesis which based on the German existing regulations of Com-pulsory Contracting, refers to the German jurisprudence and the relevant theories, applies case analysis, comparative analysis and qualitative analy-sis, identifies the problems in the existing system and additionally tries to find a new theoretical basis for Compulsory Contracting. This thesis is di-vided into three parts:Part I: Introduction of the legal status of compulsory contracting in German law, analysis of the existing regulations in the field of Tort Law and Contract Law, identification of strengths and weaknesses of these regulations.Part II: Introduction of the concrete implementation of Compulsory Contracting in German law, that is, on which conditions can man compul-sory contract, how to realize Compulsory Contracting.Part III: Based on the first two parts the author tries to find a new theoretical support for Compulsory Contracting and analyses the possibility of "United Legal Protective Relationship" and "Reliance Responsibility" from Canaris as the theoretical basis for Compulsory Contracting. Compulsory Contracting in China is also not complete, applicable conditions and legal liability issues are not clear. Although this thesis ana-lyzes the context of German Law, but the author hopes that it can help eventually to establish Compulsory Contracting system in China.