The Research On How To Resist The Arbitrary Extension Of The Use Of Liability For Fault In Negotiation

In the process of contracting, one client who has violate the prior contract obligation according to the principle of good faith, and thus having caused the loss of reliance interest of the other party, should bear the civil liability, that is so-called"liability for fault in negotiation system"in the theory of the civil law. The theory of liability for fault in negotiation was originated from appeal right of trading in the times of"civil law". It was then developed and improved in the modern"civil legislation"and"judicial practice". And its theory basis lies on the principle of good faith in the civil law. Since the German legist Rudolph von Jhering has formally introduced the conception of"liability for fault in negotiation"in his article in the year of 1861, the system was then gradually brought into the"civil legislation"as well as"judicial practice"in the country of Germany, France, Italy and Greece; It was in the which has been issued in the year of 1999 that we formally and definitely stated the system in our written law. The 42nd ordinance of the clearly defines the two detailed occasions and the general principle which fit in with the system of"liability for fault in negotiation". However, the deficiency in the development of the system, in the technique of legislation, as well as in the understanding of the policy caused the trend of arbitrary extension of the use of the system in the academic study and the judicial practice. Some conditions, which don't embody the right meaning of"fault in negotiation", are also dealt with by using the system. Meanwhile, the range of compensation has been broadened. The article, illustrated with some cases, is focused on the discussion of the detailed occasion of the trend as well as its harm, thus, to reveal the error of it. Some individual opinions on how to resist the arbitrary extension of the use of liability for fault in negotiation are raised in the article, thus to definite the range of liability for fault in negotiation. What's more, it provides us with some advices on the future study of the system, exactly defining it as well as correctly using it in the judicatory.Firstly, the article lists four detailed occasions of arbitrary extension of the use of the liability for fault in negotiation system. 1. As for liability for fault in negotiation system used for infringement, its basic fault lays in the fact that infringement infracts on the practical personal right or property of others and it should be rectified by the infringement law. 2. As for the system used when the contract has gone into effect. The liability for fault in negotiation system should only be used for the loss caused by the reliance of the non-effective law deed. 3. As for the system used for non-subjective-fault-action, it is unreasonable for the client who has not broken the principle of good faith to undertake the responsibility. 4. As for the arbitrary extension of the range of compensation, it breaks the principle of justice and the invader should only be required to compensate the predictable loss.Then, the article points out the harm caused by arbitrary extension of the use of liability for fault in negotiation. 1. It shakes the theory basis of the system and it hinders the development and improvement of the system as well as the correct use of it in the judicial practice. 2. The arbitrary extension of the use of the system violates the principle of justice. It invades some client's legal right while protect some others. 3. Some people may escape the responsibility they should blame that may cause worse consequence by using the system.Finally, the author raised his individual opinion on how to resist the arbitrary extension of the use of the system. 1. As for legislation, the conception and the main points of the liability for fault in negotiation system should be definitely defined. 2. The range of the compensation should be clearly defined in the process of legislation in order to make the abstract responsibility into concrete compensation. 3. In judicatory, we should obey the intension of legislation. The client who does not violate the principle of good faith should not be required to undertake the responsibility.The article has made the range of liability for fault in negotiation clear and it is good for its use in judicatory. The basic theory of the liability for fault in negotiation system is the principle of good faith. In the times of capitalist economy, trade and dealing affairs are unprecedented flourish. The violation of the principle of good faith, escaping the prior contract obligation and even deceive usually happens. However, these occasions neither fit into the infringement law nor the contract law. Therefore, improving the liability for fault in negotiation system and correctly using of it means a lot to the protection of the legal right of the client, the maintenance of the principle of good faith as well as the establishment of socialism capitalist economy.