Study On Legal System Of Culpa In Contrahendo

The system of "Culpa In Contrahendo"liability formed and developed between classical contract law system and classical tort law system, its appearance effectively resolved the problem of how to protect the reliance interest. Since german jurist Jhering put forward the theory of "Culpa In Contrahendo"in 1861, more than 140 years have passed, the theory is gradually accepted and adopted in the field of legislation and justice by many countries in the world, and it had made great progress too : at first, it is just applied in the cases of the contracts are not established, but now its scope is expanded to the cases of the contracts are void , voidable, or valid. At first it existed just in the judicial precedents, but now it is generalized and coded, and have become one independent and important civil legal system in many civil law system countries. Though has made great development, compared with liability for breach of contract and liability for tort and other legal systems, liability of Culpa In Contrahendo is very young, its theoretical foundation is simple, its content is numerous and jumbled, and its system is not very clear. In legislation. "Culpa In Contrahendo"varied greatly in different countries, but as a whole, its terms are general, simple, and not very suitable for application. In conclution, the theory of "Culpa In Contrahendo"is not perfect ,should be improved both in theory and legal system. This paper is divided into six parts to study issues of the theory of Culpa In Contrahendo. Part one focuses on the concept, meaning and character of Culpa In contrahendo. Part two introduces the formation and development history of the legal system in common law system and civil law system, reviews present situations and latest developments of Culpa In Contrahendo legal system in many countries of the two law systems in order to bring some reference for its improvement in china. Part three studies the theoretical foundation and liability nature of the system, the author considers that the principle of good faith and the principle of protecting reliance interest both are the theoretical foundation, and that as a contractual liability at broad sense, the liability is independent from liability for breach of contract and liability for tort in the whole civil liability system. Part four reconstructs the constitutive requirements of the liability of Culpa In Contrahendo, the author considers the constitutive requirements should include four parts, the author also discusses the content and the character of the four requirements. Part five is about subject of liability, in this part, the author first discusses the necessity of breach of scope of liability subject, point out besides parts of the contract the third party should bear this liability in some situations, then the author introduces and analyzes the types of the third party who should bear the liability of Culpa In Contrahendo and introduces the latest progress in common and civil law system countries. Part six discusses the legal result of Culpa In Contrahendo—compensation for damages. In this part, first, the author discusses that the type of burden should be compensation for damages, and it has two methods: restitution and money compensation. Second, The author analyzes the scope of compensation based on Culpa In Contrahendo should include reliance interest and maintenance interest, discusses the constitution and restriction of the two interests. The author considers that maintenance interest consists of property damages and non-property damages and all that should be fully compensated, reliance interest consisits of positive damages and negative damages, it should be fully compensated in principle too, but under common conditions, it should not exceed to performance interest.