Reasearch On The Fault Liability To Contract

The fault liability to contract is proposed by Jhering. Not only the legislation and case of the continent law but also the common law is affected deeply by this theory. "Contract law" announced on March 15th 1999 in China established the fault liability to contract. The theory solves the problem of protecting reliance interest occurred in pre-contract, which were not solved by the tradition contract and tort. It makes up the loophole of pre-contract obligation that contract law cannot research. It has great significance for protecting contractor's legal interest, ensuring the security of deal, keeping market order and maintaining the principle of good faith. However, we should also see that the provisions scattered over the contract law is abstract and simple.They lack of operability in judicial practice. So the writer makes further study on the fault liability to contract with comparative analysis and hope the article will be helpful for the development and improvement of the fault liability to contract.This paper includes five parts.The first part discusses the basic theory of the fault liability to contract. From the fault liability to contract sprouting on the Roman law, on the analysis of major opinions about the fault liability to contract which represent different stages of development. We draw the conclusion that the theoretical foundation of the fault liability to contract is the principle of the good faith. By analyzing and comparing the concept of the fault liability to contract of experts of Taiwan and mainland of China, the writer includes the perfect concept of the fault liability to contract.The second part analysis the constituents of the fault liability to contract and think that should meet four requirements.First, the contractor has the behavior of disobeying pre-contract obligation. Second, the counterparty of the contract has damage. Third, the party violating pre-contract obligation has mistake. Fourth, there is causal relationship between the behavior of violating pre-contract obligation and the fact of damage.The third part discusses the applicable scope of the fault liability to contract. The author only discusses the contentious issues in the case of unformed contract, valid contract and uncertainty contract.The fourth part elaborate on the compensation scope of the fault liability to contract. First of all, the author analyzes the protect object of the fault liability to contract, it includes reliance interest and natural interest. After that, the author limits the scope of the compensation of the fault liability to contract, and thinks that the reliance interest's loss not only including direct loss, but also including indirect loss, and the damage compensation should take implementation interest as its limit. As the intrinsic interest's loss scope, should determine for all loss.When the victim also has fault to the damage, the principle of fault offset is suitable. The fifth part points out the shortcoming of the existing fault liability to contract and proposes some legislative proposals on the basis of analyzing our legislative status. At last, the conclusion summarizes the content of the paper and views the future of the fault liability to contract.