A Research On Basic Legal Issues Of Compulsory Contracting

Compulsory contracting is increasingly drawing attentions and concerns of people in modern society which is definitely a calling for further inquiry by practitioners in profession and scholars in academia as well. In present legal system of China, there are ambiguities and blankness in provisions of law which makes judicial practice and adjudication inevitably contradicts from time to time. What puts the situation even worse is the shallowness of theoretical study, which embarrasses the whole profession. This thesis is aiming at improving the situation by contributing to the legal understanding of this very domain. With a rudimentary analysis on the fundamental issues this aim should be fulfilled. Plus introductory remarks and ending remarks, there is the main body made up of four chapters. Titles and primary contents read as follows: Chapter 1 begins with Fundamentals of theories of compulsory contracting, which is also the core contents emphasis attached to. From elaborating on aspects as to the origin, value orientation, specific circumstances of, and legal essence and legal liability in case of violation of duty imposed, of compulsory contracting, and with exceptions to the general rule, this part analyzes the notion of compulsory contracting reaching a conclusion that theory of compulsory contracting was born in the era of monopolistic capitalism with an orientation of rectifying doctrine of free contract and bolstering substantial justice of contract as outcomes of values judgment. Taking this as a starting point, the thesis adopts a broad view of notion of compulsory contracting. Compulsory contracting is an act with legal significance which is in essence between act in public law and ordinary civil juristic act and still within the province of legal act in private law sphere. The party who fails the duties shall be subject himself not only to possible responsibility in public law but also to civil liability. Legal liability imposed, when a violation occurs, is not out of culpa in contrahendo or breach of contract or others but out of torts. Whatever the essence of liability is, the forms of assuming it could be various and diversified. A demurrer proves a rule, which definitely applies to the case of compulsory contracting. The party bearing legal duty to contract can refuse when he possesses "legitimate reason". Chapter 2 is devoted to analysis on categorization of compulsory contracting. In this chapter, a delineation of different forms of compulsory contracting given in theory is under survey. Judged by the criteria in which forms of civil liability assumed by obligor is taken as benchmark, compulsory contracting is divided into two forms, direct compulsory contracting and collateral compulsory contracting. In addition, with an emphasis on elaborations over concrete forms, this part also deals with the two commonplace forms, compulsory contracting in utilities and in medical service, from aspects of historical developments, essence of duty, and liability assuming and with its demurrer. Chapter 3 is on the comparative analysis on notion of compulsory contracting and on other relevant concepts. In this part, a comparison of notions of compulsory contracting, of standard form contract, of administrative contract, and of contract out of command is conducted, with which a much clearer understanding of the implication and applicable scope is reached. Chapter 4 is on the actual implementation of compulsory contracting in civil law of China. For making up for the lacking of legislations for this very institution and confusions caused by, a suggestion is put forward in which expanding of the scope of implementation and perfection of accountability in a form of civil legal liability is recommended. The primary achievement of this thesis lies in a systematic account of the fundamental legal issues of compulsory contracting, elaborating and clarifying that the legal essence of compulsory contracting is characterized as private law, indicatingthat tort liability is the nature of form of liability for the violation. Based on these two conclusions, this thesis analyzes the aforesaid two typical forms of compulsory contracting and put forward corresponding suggestions and advice. A historical comparative analysis approach is adopted in accounting the free contract doctrine and justice theory of contract in dealing with the origin and developments of compulsory contracting. In dealing with legal nature, forms of liability assuming and relevant notions, the argumentation is carried out with an approach based on comparative and logical inference methods for the sake of preciseness. In terms of practical advice and suggestions put forward, the methodological emphasis is put on the practicality of proposals, a combination of theory and practice, therefore, is preferred.