On Liability For Fault In Contract Signing

The theory on liability for fault in contract signing was first put forward by German jurist Jhering. It was described as the juristic discovery in academic circles then and exercised a great influence on the legislation and case of the system of liability for fault in contract signing in the world. The system of liability for fault in contract signing is an important part of civil liability system. It is the system of liability for fault in contract signing in the civil law theory that the civil liability for compensation should be borne by the party who breaches the liable pre-contractual liability based on the principles of honesty and credibility in the process of concluding a treaty, resulting in the unsuccessful conclusion, invalidation and cancellation of the contract, and thus causing a loss to the reliance interests of another party. Liability for fault in contract signing only happens in the stage of concluding a contract and in the course of contract negotiation. If the contract has not been concluded, or has been concluded, but the contract is void and cancelled due to the force elements conflicting to the laws, liability for fault in contract signing should be borne by the faulty contracting party in terms of the harm to the other party's interests. If the contract has been formed and come into effect and both parties are in mutual rights and obligations regulated in the contract, the sole liability for breach of contract should be borne and liability for fault in contract signing needn't be borne separately. The theory on liability for fault in contract signing originated from the system of suit rights of transaction in the period of Roman Law, and is developing and improving in our country's civil legislation and judicial practice based on the theoretical bases of the principles of honesty and credibility in civil law. China formally and explicitly stipulates in statute law that this system exists in Contract Law issued in 1999. Two specific cases and general principles suitable for the system of liability for fault in contract signing are explicitly stipulated in Article 42 of Contract Law. However, due to the imperfect development of theories, the immaturity of legislative techniques and the deviations of mastering the system in justice, some wrong applicable situations take place in the academic study and in the judicial practice, some situations not embodying the system of liability for fault in contract signing are dealt with as cases of liability for fault in contract signing. The formulation of improving the system of liability for fault in contract signing in judicial practice in our country is proposed through cases in this thesis. In the meanwhile, when applying liability for fault in contract signing, some noticeable problems in judicial practice are pointed out. Through exploring specific situations of misapplying liability for fault in contract signing, some revelations are offered to precisely define the system in legislation and to precisely apply the system in justice.Since Contract Law was established in 1999 in our country, this system plays an important part in judicial practice. Having been examined by judicial practice, this system still needs to be perfected. It is believed in this thesis that China should not only improve the system of liability for fault in contract signing in legislation, but also precisely apply the system of liability for fault in contract signing in judicial practice. In judicial practice, the injuries in the process of concluding a treaty are usually regarded as the acts of fault in contract signing and thus the liability for fault in contract signing should be borne by the actor. Actually what the act infringes is the existing property rights of the counterpart, but not the reliance interests generated by trusting the establishment and effectuation of the contract. The constitutive requirements of the liability for fault in contract signing are not coincided in such sort of situations, therefore it is improper to regard the act as fault in contract signing. In terms of nature, the constitutive requirements of infringing acts are completely coincided in this act, therefore, in such situations, the actor should be required to bear liability for tort according to the tort law, but not be required to bear liability for fault in contract signing. The improvement of the system of liability for fault in contract signing in our country should not only depend on the improvement of legislation but also require to ensure the right application in practice.In the process of analyzing cases, the phenomenon that the actor's fault causes harm to the counterpart at the time of concluding the contract is usually examined emphatically, whereas the whether the actor's act of wrong is against the principles of honesty and credibility, and the legislative intent of the establishment of the system are usually neglected. These cause the wrong application of the system of liability for fault in contract signing in judicial practice. Therefore, only when the legislative intent is focused on in judicial practice and the essence of the liable person's violating fiduciary duty is captured, can the system of liability for fault in contract signing be right exercised, and the legal function of the system fully displayed.