A Study On The Compromise Contract

Compromise contracts are contracts in which both of the parties yield to the opposing party in order to terminate the dispute between each other concerning private rights or to obviate the uncertain state of the legal relation between the two parties. In compromise contracts, two parties deal with the dispute or the uncertain legal relation between each other according to the will of their own. By compromising people can terminate disputes or prevent the occurrence of disputes effectively. And compromising is the most typical way by which people settle disputes between each other concerning private rights by themselves. It is very important for us to enhance the system of dispute settlement by studying on the compromise contract. But there is no compromise contract legislation in our country, and there is no paper or monograph on it so far. This thesis, benefit from the legislation and theory of compromise contract of civil law countries and regions, does a good research into the concept, constitute element, nature and effect of compromise contract by the way of comparative study. It embraces fives parts.Part I analyzing the compromise contract legislation of civil law countries and regions, and the present researches on compromise contract in our country, argues that our study on compromise contract must aim at lawmaking, and defines the systematical premise of this thesis.Part II argues that the agreement of compromising is a contract, and defines the denotation and connotation of compromise contract.Part III does a good study on the three constitute elements of compromise contract, defining the sphere of the legal relation which is the object of compromising.Part IV firstly puts forward that compromise contracts embrace program factors, considers that in compromise contracts legislation themediation out of law suits should be regulated, and brings forward concrete assumptions by drawing lessons from "civil code of Ethiopia". Secondly, the dominant ideology that compromise contracts belong to creditor's contract is oppugned and it's demonstrated that compromise contracts may be real contracts. And then it argues that a compromise contract is not necessarily a bilateral contract, a compromise contract belongs to informal contract, consensual contract, etc.Part V puts forward that we should study the effect of compromise contracts on the basis of the ascertainable effect of compromise contracts by drawing lessons from Professor Chen Ziqiang, who is in Taiwan of China, and criticized the arguments between the opinions of cognizance effect and creative effect in the academic community. It also probes into the effect of compromise contracts on the parties of the contract and the third party, and the effect obstacles of compromise contracts, through the main line of the passiveness and activeness of the ascertainable effect of compromise contracts. Above all, it emphasizes on analyzing the relation of compromise contracts, unconscionability and mistake system.At last the concluding part present a proposal of the legislation of compromise contract.