Contracting Negligence Study

With the development of our open - and - reform policy, there is a deeper, wider and more frequent trend in the transaction. In the judicial practice of our country, there isa lot of dispute about contract coming from contracting for negligence and partiers' action during contracting need law to regulate mosdy. Although our country' s Contract Lawhas set up Fault In Negotiating, it looks infeasibility. In order to provide a correct choice of institution for Fault In Negotiating of our country, the author made a deep research and discuss on the questions about Fault In Negotiating by institution analysis, practical analysis, comparative analysis and other methods.First, the rationales of Fault In Negotiating. Firstly, the author analyzes the fire viewpoints of this concept by com-paration. He points out it is the civil liability that one party should undertake when he violates the pre - contractualDuties because he disobeys the good faith principles andcauses the other party lose of reliance interests. Secondly, the author points out that the good faith principles is thetheory basis of Fault In Negotiating. On the basis of analyzing the four theories about it: the theory of legalbehavior, the theory of tort behavior, the theory of regulation, the theory of the good faith.Second. History and development of the theory of FaultIn Negotiating. The pioneer who made a comprehension and deeper research on Fault In Negotiating is Yaline, a German Law expert. He considers that the parties of a contract have positive duties coming from honesty during contracting, and the party who breaks them should undertakecompensation duties. With the rapid development of the world economy and transaction, people pay more attention tocredit and honesty. More countries in the world graduallyacknowledge and accept the institution of Fault In Negotiating .Third. The constitution and application of Fault In Negotiating. At first, the author believes that, the constitutive elements of defining Fault In Negotiating have four: one ofcontracting parties has conducts of violating Pre - contractualduties; those conducts lead to the other party' s loss of reliance interests; one party has subjective faults; those conducts and actual harms have the relationships of cause and effect. Then, observing relevant countries' legislationand legal precedent, the author believes that, the main types of Fault In Negotiating are the followed: 1. conferring with each other at ill will under the name of contracting; 2. concealing intentionally important facts on con-tracting or providing false information; 3. recalling and annulling inappropriate contracting; 4. recalling inappropriate acceptance; 5. at the time of contracting, not performing informing duty; 6. at the time of contracting, not performingthe protection duty; 7. at the time of contracting, not performing duty of keeping secret; 8. contract being invalidor being annulled; 9. having no acting right. At last, the author thinks that in practice we should pay attention to three problems: first, under circumstances of contributory negligence of both parties, negligence should be counteracted according to the specific situation. Under the circumstances ofbeing aware of the other party' s faults, negligence should not be applied; second, if there is not obvious regulations in laws on the issue of valid period, the relative regulations for one year, two years, four years and twenty years can be applied; third, the institution of Fault In Negotiating should used prudently, in order to protect the basicprinciple of contracting freely from harming.Fourth. The comparison of Fault In Negotiating and relative liability institutions. The article studies deeply the difference and similarity of Fault In Negotiating and the liability for tort, the liability for breach of contract and theinstitution of acceptance forbidding backing out. Trie articlealso points that Fault In Negotiating is an independent civil liability.Fifth. Hie present sit...