Contracting Fault Liability Study

This dissertation dissertates the birth, development, law-basis, characteristics, constitutive elements, the application and the legal results about the Culpa in Contrahendo. Based on the above analysis, it analyzed the defaults of our country's legislation and put forward the suggestions to further perfect the legislation of the culpa in Contrahendo in our country. In the arrangement of the structure, this paper includes six chapters except the pre-words and the closing-words, they are:Chaptert gives a brief introduction of the culpa in Contrahendo. It expatiated the historical origin, the formally introduction and the legislation status in other countries and the international civil and commercial law.Chapter2 indulges in probing the basic theoretical problems of the liability. First of all, it probes the legal foundation of the liability, it put forward that the treaty party's reasonable reliance is the directness legal foundation in admitting the bona fide doctrine as the basic legal foundation. Then, it discussed the disadvantage of taking the bona fide doctrine as the single value and pointed out that the free contracting rule should also be considered, which means that we should balance the two values of the bona fide doctrine and the free contracting rule. Third, it takes a further study about the liability's concept and insisted that it should be modified to accord with the changed connotation. Fourth, it discussed the characteristics of the liability and probes into the status of the liability in the civil law.Chapters mainly dissertates the constitutive elements of the liability. Based on the analysis of the related dissertations, it pointed out that there is four elements should be considered. That is: (i) there should be a contracting or negotiation relationship between the two parties; (ii) the litigants breaks the pre-contractual duties and has subjective fault; (iii) the litigants has suffered actual losses; (iv) the conduct of breaching the pre-contractual duties is thedirect reason of the other party's losses. This part especially discussed the pre-contractual duties and made the bona fide doctrine becoming easy to handle.Chapter4 discussed the liability's scope of application. Based on the above analysis, it further probes into some actual circumstances relied on the status of the contract. Applying such a structure is not to illuminate the liability's relation with the contract's status, but to analysis it more completely and orderly. Through this chapter's discussion we can better grasp the liability's application in different circumstances that the legislation and the practice might meet, the author's view is also presented in the meantime.Chapters mainly concerns about the legal results of the culpa in contrahendo. It first insisted that the method of compensation shouldn't be restricted to the single method of compensation for damages. Second, after introducing the concepts of confide interest in the two law systems. It put forward that the concept of confide interest in the continental law should be changed. That is to creating an independent concept of the actual interest, which might help to get rid of the controversy relating the scope of the compensation. At last, this chapter also probes into the other regulations, such as the burden of adducing evidence etc.Chapter6 indulged in bring forward the legislation suggestions about perfecting the liability in our country's legislation after dissertating the status and defaults of our country's present legislation.Yang Yunfei (civil & commercial law) Directed by: Shen Qiuming Professor...