The Discussion Of The Contracting Negligence Responsibility

Contracting negligence responsibility is an independent system of creditor's rights which originated from Roman laws. The early civil law and the new contract law of our country have made some provisions on it. However, in the academic world, people don't hold completely identical views and there are great theoretical disputes so that some discrepancies emerged. So it needs perfecting in the practices of legislation and judicature.It is not a long time since china began to study of Liability for Fault in Contracting. The Contract Law of the People's Republic of China first and clearly stipulates the system of liability for fault in contracting. But the stipulation for the system of the contract law is basic and simple, and not very practical.The first section introduces the origin and historical development of the contracting negligence responsibility theory. The Germany jurist's Paper created the contracting negligence responsibility theory in 1861 and influenced Germany and other continental law countries greatly. Some countries include German, Switzerland, Greece and Italy acknowledges the contracting negligence responsibility system. And the British and American legal system also has the same system. The nature of these systems is as same as the contracting negligence responsibility. So the British and American legal system also has the contracting negligence responsibility. In the former Chinese legislation, there are only honesty and credit principle and the contracting negligence responsibility that used when the contract is invalid and is cancelled. The new contract law which is published recently regulates the contracting negligence responsibility of notice violation and secret violation. But in the new contract, the concrete front contract responsibility and compensation scope are not regulated perfectly.The second section introduces the meaning and characters of the contracting negligence responsibility theory. The contracting negligence responsibility is a kind of civil responsibility during concluding contract. One party violated the front contract responsibility which is according to the honesty and credit principle; it refers another party's benefit loss. There are four characters of the contracting negligence responsibility: the first one is that contracting negligence responsibility is the civil responsibility during concluding contract; the second one is that contracting negligence responsibility is the civil responsibility which based on the honesty and credit principle; the third one is that the benefit which contracting negligence responsibility protects is the faith benefit; the last one is the contracting negligence responsibility is a kind of compensation civil responsibility.The third part introduces the contracting negligence responsibility's constitution factors. The constitution factors includes: the faith benefit is received damage; the front contract responsibility is violated, it is also the outer performance in the subject opinion; the litigant has subject fault; there is direct relationship between the action that violates front contract responsibility and faith benefit damage, the credit benefit damage which is not created by faulty action is not covered in the responsibility scope.The fourth section introduces the contracting negligence responsibility's request right basis. In the educational world, there are several theories includes Right infringement behavior theory, lawful behavior theory, law regulation theory and honesty &credit theory. The writer agrees with the honesty and credit theory. The honesty & credit theory has reasonable system logic as the request right of the contracting negligence responsibility. The front contract responsibility develops according to the honesty & credit theory. It includes protection, notice, secret-keeping, attendance, honesty and so on.The fifth section introduces the using scope of the contracting negligence responsibility. Its using scope expanded from the publication day. The problem of contracting negligence responsibility's using scope is disputed and difficulty in the legal practice. The writer holds the opinion that it should be defined according to the contracting negligence responsibility's constitution factors which includes the front contract responsibility violation behavior, fault in the subject part, the damage result and the causal relation between behavior and damage.In the recent time, there are four different opinions about the contracting negligence responsibility in the educational world. The first one holds the opinion of contract's un-establishment. It is also called traditional kind. The second one is generalized that includes the un-establishment contract and un-effect contract. The third one is the most generalized kind. Based on the second opinion, it is acknowledged that contract is un-established and un-effect if it is according to the fourth condition. The writer agrees with the third opinion. There are the following reasons. In the legislation, there is no limitation in Contract Law. It is the concrete necessity in legal practice. And it is possible to acknowledge the effect contracting negligence responsibility. From the angle of other countries'legislation regulation, it is only regulated that the negligence behavior happens during concluding contract. There is effect contract or not is not the standard for the contract litigant to afford the contracting negligence responsibility.At the same time of analyzing theory, this paper classifies the contracting negligence responsibility's using scope combines with the concrete cases. There are several conditions: The effect invitation is cancelled, the business advertising contracting negligence responsibility, the preliminary agreement violation contracting negligence responsibility, there is lack of necessary contract provision, the contracting negligence responsibility when the contract is changed or cancelled, the contracting negligence responsibility when the contract is changed to the effect contract, the litigant is intend to hide the important fact about the contract or provides the false condition, they take consultation with evil intention, no deputy right and the compulsive contracting responsibility violation.The sixth chapter gives a discussion about the way of bearing responsibility and the extent of compensation of the contracting negligence responsibility.Our government devotes its energy to develop our socialist market economy. There will be more and more disputation of the contracting negligence responsibility. It is meaningful to research the contracting negligence responsibility both in theory and practice.