The Understanding And Application Of Foreseeable Regulation

The foreseeable regulation is researched in this paper, the understanding of foreseeable regulation is discussed in first three parts, and the application of foreseeable regulation is discussed in the last part.In the first part, the foreseeable regulation is introduced by the author; it is totally divided into three aspects: first aspect, the production of foreseeable regulation is exposited with the goal to better understand the development and change of the concept of foreseeable regulation and make clear the meaning of foreseeable regulation. Conclusions that foreseeable regulation appeared earliest at the age of ancient Rome, developed from the French law in 19 century and enriched in English law are drawn up through analyzing the concepts of foreseeable regulation in the age of ancient Rome, France and Britain.In the second aspect, the theoretical bases of foreseeable regulation are analyzed; the author thinks that foreseeable regulation has three theoretical bases, that is, autonomy of will, principle of justice and efficiency. First, autonomy of will is the most important theoretical base of foreseeable regulation, it is because the expression of individual true will is the basis to conclude contract, and the above decides that the efficiency of contract should be based on things and circumstances which have been known or should be known by both parties when the contract is concluded. Second, it is about principle of justice, the liabilities for breach of contract is required to be limited into a fair and justifiable scope. The last, it is about efficiency, both contracting parties are promoted to adopt more effective ways to pull the smooth fulfillment of contract by the foreseeable regulation through balancing costs and risks in transaction.In the third aspect, the comparisons of foreseeable regulation and related concepts are discussed by the author with the goal to better understand the meaning of foreseeable regulation. Foreseeable regulation and relationship of cause and effect are compared first, foreseeable regulation and the relationship of cause and effect are compared, foreseeable regulation is the most similar to equivalent causality theory, but both of them are not quite similar in criterion, aim and time. Foreseeable regulation and subjective fault are compared next, both of them are the error state of delinquent party, but both of them are different in time, nature and the principle of imputation. Foreseeable regulation and the principle of complete compensation are compared last, foreseeable regulation comes from the principle of complete compensation, and it is the perfection and creation for the principle of complete compensation, which adapts to the requirements of market economic system.In the second part followed, the meaning and application of this regulation are inspected by the author from the view of comparative method, it is totally divided into three aspects: the first aspect is the regulations about the foreseeable regulation in Continental Legal System, relevant provisions in the law of France, Italy, Macao and Japan are introduced in the paper, although there are no relevant regulations in Germany, the equivalent causality theory is very similar to foreseeable regulation. The second aspect is the provisions about the foreseeable regulation of Anglo-American Legal System, foreseeable regulation has been universally applied in Britain, America and France, and relevant provisions in British law and America law are introduced in the paper. The third aspect, through summarizing and comparing the foreseeable regulation in the above two legal systems, the author thinks that there still are some differences in the standpoint of designing the system of foreseeable regulation, it is mainly reflected on the two aspects of foreseeable standard and foreseeable scope.In the third part followed, the basic contents of foreseeable regulation is discussed, it is the major contents to understand foreseeable regulation and also the bases to design foreseeable regulation. The third part is totally divided into six aspects, the first aspect is foreseeable subject, and there are three doctrines in educational circles: delinquent party, both contracting parties and delinquent party or both contracting parties. The author thinks that delinquent party should be taken as foreseeable subject, to prevent judicial trial from falling into disputes led by delinquent party because of observant party expands the damaging scope without limitation.The second aspect is about the foreseeable degree, there are three opinions in educational circles: the first, foreseeable degree is damaging species; the second, defaulter not only foresees the damaging species, but also foresees damaging scope; the third, defaulter is required to foresee the damage caused under normal conditions and particular conditions. The author considers that various concrete conditions should be considered and the good points of each opinion should be absorbed so as to judge foreseeable degree.The third aspect is foreseeable time, there are mainly two kinds of theories: the view of formation of contract and the view of nonperformance of obligation. The view of formation of contract is adopted in the legislation of this country, however, the author considers that exceptions should be enacted for some violations of agreement (such as willful default), that is, willful default takes the view of nonperformance of obligation as criterion.The fourth aspect is foreseeable criterion, there are three criterions such as reasonable person, everyman, the reasonable plus everyman, the author considers that foreseeable regulation in this country should judge whether debtors are foreseeable or not by taking the requirements of reasonable person as criterion.The fifth aspect is foreseeable restriction and exclusion, because foreseeable regulation has defects in some aspects, some restrictive or exclusive circumstances are stipulated for foreseeable regulation in the instance of legislation of each country. Moreover, most countries take intentional or grossly negligent violations and frauds as the exclusion of foreseeable regulation.The development and perfection of foreseeable regulation in this country are discussed in the last part, and this part is divided into four aspects. The present legislation situation of foreseeable regulation in this country is stated in the first aspect, the provision on reasonable foreseeable regulation in the legislation of this country is seen most early in Foreign Economic Contract Law, Technology Contract Law and Railway Law and standardized in Contract Law. The development of foreseeable regulation in the judicial practice of this country is summarized in the second aspect, the author considers that it can be divided into three stages: germination stage, producing stage and developing stage. The third aspect is the evaluations for the legislative and judicial practices of foreseeable regulation in this country at present, firstly, realize the unification of the three contract laws, secondly, pay more attention to balance the interests of contract parties from the angle of protecting transaction security, thirdly, pay attention to legal transplant legally. The assumptions of foreseeable regulation in this country is perfected in the fourth aspect, first of all, perfect the legislation of foreseeable regulation in this country, first is to unify law-making stipulation and make clear law term; second is to make clear the application of foreseeable regulation in culpa in contrahendo. Next, perfect the applications of foreseeable regulation in justice, firstly, grasp application condition in correct way; secondly, refine the criterion of whether foreseeable or not; thirdly, strengthen the function of legal precedent on the aspect of judgment direction.