Study On Pre-Contract System

With the rapid economic development,there are a lot pre-contacts in practice.but, China's contract law does not make any provisions for pre-contact,a large number of pre-contacts drifted away from the laws of contract and can't be protected.This dissertation studies with historical analytic comparison and induction methods,and try to make the related contents of the pre-contract present clearly.According to the need of discussion,the dissertation divides into six parts with their specific frame and opinion as follow:Preface briefly introduces the meaning of pre-contract,development and researching in domestic and foreign countries,and study methods used in this dissertation,the value of writing this dissertation and so on.The first part is the outline of the pre-contract.The article firstly seeks the origin of the pre-contraet,then proposes two origin ways of the pre-contract- One originated from contracts of major affair in the Roman law.The other originated from the division of pre-contract and contract.According to concluding contract whether has beforehand agreement,the contract divides into the pre-contract and contract,this kind of origin is typical and representative,the dissertation lays emphasis on this kind of pre-contract that exists with the contract.After clarifying the origin ways of the pre-contract,the dissertation briefly introduces the characteristics of the pre-contract:it is an independent obligation right contract,because its existence is not dependent on the contract;since it does not need to delivery subject matter or do other behaviors,the pre-contract is also a consensual contract;for making the rights and obligations of pre-contract definitely,the pre-contract in principle is a solemnity contract,The second part discusses the foundation of pre-contract.The largest contract theory supported by the pre-contract is the freedom of contract principle.Under this principle,the future contracting parties have the right and duty to make advance arrangements for breach of contract.The other theory supported the pre-contract is economic efficiency principle. Pre-contract can reduce the transaction cost and reintegrate the social resources.The realistic existence foundation of pre-contract is that it can make up the lack of Culpa in Contrahendo and offer-acceptance which adjust the contracting phase.The third part discusses the identification of the pre-contract.The pre-contract is a kind of creditor's rights contract,so its establishment and validity is comply with the provisions of the general creditor's rights contract.Except those,the special nature of the pre-contract claims for the established content and some relevant provisions which meet the solemnity pre-contract.In the practice,it is easy to make pre-contract confused with the contract with stop condition,letter of intent,offer,especially the contract,this article also gives the significant discrimination about them.The fourth part discusses the legal effect of the pre-contract.After admitting the law should make the explicit stipulation of deadline,the dissertation introduces the abroad effectiveness of legislation of pre-contract:negotiating or forced concluding.After analyzing fit and unfit quality of these two kinds,the article proposes its own viewpoint:the parties of the pre-contract has the duty of concluding a contract,but that does not mean the parties must sign a contract,when they choose not to make the contract,they should take the responsibility of the contract under the effectiveness of the pre-contract.The fifth part discusses the legal liability of pre-contract.Firstly,the dissertation discusses the reason of the pre-contract applying strict responsibility principle as its responsibility principle,then,the dissertation focuses on the legal liability of breaching the pre-contract,mainly includes,the agreed form:deposit and penalty;and the legal form: damages,mainly is the compensation for relative party's faith loss.Meanwhile,the contract also has Culpa in Contrahendo.Since pre-contract is a contract,in the course of setting contract there exists pre-contractual obligation,breaching the pre-contractual obligation can produce the Culpa in Contrahendo.The sixth part discusses the design of pre-contract.After introducing the present legislation situation of the pre-contract in our country,the dissertation points out the necessity of stipulating the pre-contract in law.Following,the dissertation discusses what the position of the pre-contract in the future Civil Code,this dissertation figure out that it should be put into the part of general obligation.At the end,basing on the above article on pre-contract,the dissertation tries to suggest the design of its legislation of the pre-contract system in the future Civil Code.The part of the conclusion makes brief summary to the full text and reiterates the importance of establishing the pre-contract system in the law.