Research On The Compulsory Of The Contracting

In the field of private law, we put special emphasis on the contractual freedom. However, the emergence of rules of compulsory of contracting brings a tremendous restriction on the freedom of contract. The current theoretical study on the compulsory of the contracting is not very good, especially on the obligation of violations of rules of compulsory of contracting, there is a big difference; The rules of compulsory of contracting are also not very perfect in the field of legislation, which induce the process of the problems is very difficult to the circle of justice. So it appears very necessary to strengthen the research on the system of ompulsory of contracting, making the type construction of contractual obligations, specifying the responsibilities and defenses of breaching of the contractual obligations, to perfect the relevant legislation in the field of contract law, protect the fundamental interests of vulnerable groups and promote social equity and harmony.This paper is about 32,000 words. In addition to the introduction and conclusion, it is divided into four parts:Partâ… , the compulsory contracting is defined as: it is a system that a party has a duty to give an offer or the other party can not refuse the request because of the clear provisions or analogy principle. The statutory in applicability and analogy nature is the obvious character, which severely restricted the freedom of contract. The application of classification method in the research of the compulsory contracting will help to reveal the substance of this system and have a better effect to guid its application. This system can divided into different categories on the different standards: direct compulsory enforcement and indirect compulsory enforcement; compulsory offer and compulsory commitment; objective type, content-based type and results-based type; the compulsory of contracting in accordance with mandatory law and the compulsory of contracting in accordance with private law and social law.Partâ…¡, the arise of the compulsory contracting. This system do not arise with the produce of the principle of contract freedom , while it emerged with the development of the spirit of contract freedom . With the development of modern economic and society, the principle of contract freedom is subject to certain restrictions after its admiration. And the scope of its application is also shorted. The freedom of contract are showing signs of decline both from the legislative view, the intervention view, or from the judicial view. Today the public law and private law is integrating ,and in this background, the meaning of the contract freedom is required to have an essential change match the social development, and consistent with freedom of contract. In this sense, the current restrictions on the contract has become an irreversible trend. And mandatory contracting system came into being in this context.Partâ…¢, the application of the compulsory contracting system. The compulsory contracting has become a modern trend, many national laws which are clearly define the related rules of the compulsory contracting application. The application of the compulsory contracting must clear the mandatory contractual obligations, as well as the obligations of violations of the mandatory contracting. The body of the mandatory contractual obligations is the people that the system applies to. The author advocates a special responsibility, which is called a special responsibility here when the body violate the mandatory contractual obligations. it is not an independent attribution theory, but merely a kind of imputation method which is a mixed responsibility collectively. According to violations of the mandatory obligation of the different types of contracting, respectively, the corresponding commitment to tort liability, contracting, or other public law negligence liability responsibilities. The law is the art of balance. It is a good policy that different types of mandatory contractual obligations have different defenses, which give the judge a discretion.Part IV, China's legislation on mandatory contracting status and improvement. China's legislation is a closed-type model which can not meet the development needs of the new situation. Due to the lack of clear responsibility for the legal norms, the administration of justice is difficult to operate, which affects the judicial authority. Coupled with the lack of the obligations and the defenses produced from the breaches of the mandatory contracting, the damage is resulted which is unfair and unreasonable. In our country, the general rules of contract law can be such a setting: who in fact living in an exclusive position or monopoly position should bear the obligations of contracting. And article 4 of the Contract Law: "parties are entitled to the right of voluntary contract legally, and no unit or individual may illegally interfere", and the sentence should be added: "but the burden of mandatory contractual obligations under the law is excepted."...