On The System Of Liability For Fault

Cupla in contrahendo, which was first put forward by famous Germanjurist Jhering in 1861,has exerted an extensive influence on thelegislation, judicial practice, and jurisprudence in large amount ofcountries. The Contract Law of our country has provided in details thesystem of Cupla in contrahendo. However, as the adoption of the regulationin our country occurred comparatively late, which leads to the immaturein both theoretical research and legislating, therefore, it still hastheoretical and practical significance to research on specific issuesrelating to Cupla in contrahendo theory. The author is intended to discussthe issues of, which based on the basic theories, the classification ofthe Culpa in contrahendo, the constitution prerequisite and the range ofdamage compensation, as well as the preliminary discussion on thepractical problems confronted with and the relevant legislation in ourcountry, etc. For sake of breaking away from the yoke of the traditionaltheory, the author also raise certain new opinions about the culpa incontrahendo, putting forward under the new conditions and though the newdirections.The whole thesis is composed of five parts as follows:In the first part, the author introduced the and the development ofthe theory of Cupla in contrahendo.In the second part, the author expatiated the basic thory of cuplain contrahendo, analyzed the intension and the characteristic of cuplain contrahendo responsibility and defined the Cupla in contrahendo as thepre-contractual duty caused by the violation of bona fide doctrine,furthermore, the author proposed the interest protection for the thirdparty who is the direct contractual beneficiary;besides following athorough examination on the relationship between the responsibility ofculpa in contrahendo and those of tort and contract breaching studied thenature of the responsibility of culpa in contrahendo, the author holdsthat the responsibility of culpa in contrahendo is an independent civilresponsibility which is quite different from tort responsibility as wellas contract breaching responsibility. Meanwhile, the author explored liebasis for claiming the responsibility of culpa in contrahendo. Afterpenetrating study on four doctrines, namely the doctrine of legal action,the doctrine of obligatory right, the doctrine of statute and the doctrineof good faith, the author believes the doctrine of good faith is moreacceptable.In the third part, the author made a relatively comprehensive scopeanalysis about Cupla in contrahendo based on different criterions and putforward new ideas. For example, the author analyzed whether the Cupla incontrahendo is still applicable given the execution of contract andanalyzed the application of the Cupla in contrahendo theory in relationto those agreements made for the purpose of reaching the final contracts,such as the preliminary agreements, letters of intent or agreements inprinciple which are commonly used in modern economic life.In the fourth part, the author studied the extend of compensation ofculpa in contrahendo, proposed that the basic right for culparesponsibility protection is the trust benefit and analyzed the conceptand characteristic of trust benefit;meanwhile stated that the trustbenefit impairment consists of direct loss and indirect loss,, insistingwhat should be compensated is the expected interests and the extend ofcompensation shall not exceed the performance interest with a fewexceptions under some special circumstances including the party who isresponsible acts with strong intention and the party is intential.Finally, the thesis elaborated other important issues relating toCupla in contrahendo, for example, the improvement of China's legislationwith respect to Cupla in contrahendo and pointed out the issues that shouldbe paid more attention in judicial practice.