Forced Contracting Legal System

The doctrine of freedom of contract guarantees smooth exchangesand the market mechanism's basic function. But with the socialdevelopment, absolute freedom of contract becomes tool of the strongparty to exploit the week party. To keep the stability of the social orderand the development of the civilization, it is necessary to put reasonablerestriction on the freedom of contract. The offeree should not refuse toaccept the offer without justification and has to conclude the contract. Itjust is the compulsory contracting.As a legal system balancing the interests of both parties,compulsory contracting is increasingly drawing attentions and concerns.The practitioners in profession and scholars in academic study deeply inforeign countries. In present legal system of China, there are ambiguitiesand blankness in provisions of law which makes disordered judicialpractice inevitably. What makes the situation even worse is theshallowness of theoretical study, which embarrasses the wholeprofession. In order to arise enough attention coming from theoreticalcircle and promote the development of civil law and the process oflegality, the author makes a rudimentary analysis on the fundamentalissues.Besides the preface and conclusion, the article includes three parts.The preface generalizes the importance of legal system ofcompulsory contracting and explains the realistic significance of theperfection of it in our country.The first part expounds fundamental theories of the following fiveaspects: the origin, legal essence, the meaning, the categorization, thedifferentiation with the correlative concepts. This part states that thecompulsory contracting was born in the era of monopolistic capitalismwith an orientation of rectifying freedom of contract. Taking theorientation of value, the thesis adopts a broad view of notion ofcompulsory contracting. Compulsory contracting is an act with legal significance which is in essence between acts of public law and ordinarycivil law sphere. In the several classifications of compulsory contracting,this article tends to the kind of classification of direct and indirectcompulsory contracting according to whether there are clear legalstipulations. In addition, the author makes a comparison between thecompulsory contracting with standard form contract, administrativecontract, and advance contract. In this way, a much clearerunderstanding of compulsory can be reached.The second part sets forth deeply and comprehensively theprovisions of the current acts about compulsory contracting in OurCountry. This part firstly illustrates the necessity of application ofcompulsory contracting in our country, and then affirms that that thelegal system of compulsory contracting has been established in part onthe base of analysis of condition of legislation, lastly, this part discusseslegislative defects that the scope of implementation of is limited, that thelegislation has not stipulated the justifications refusing to contract andthe deadline of offeree to make promise, that the legislation has notstipulated the legal liability perfectly the offeree should undertake whenhe violates the legal contracting obligation, and that there is a lack of ageneral term about the legal system of compulsory contracting in"contract law".The third part focuses on the perfection of the legal system ofcompulsory contracting in our country.The part is the core of this thesis.Corresponding to the defects illustrated in the second part, this part putsforward some perfective suggestions that the scope of implementation ofcompulsory contracting should be extend to apply to other units ofpublic utility, the producers or managers who monopoly specificbusiness in a certain area, the industries and groups who have theobligation of compulsory contracting according to the principle of socialjustice, and the legislation should stipulates the legitimate reasons torefuse to contract, the deadline of offeree to make promise, the legalliability the offeree should undertake when he violate the legal contracting obligation and a general term added to the legal system ofcompulsory contracting in "contract law".The conclusion states that the abuse should be avoided when thecompulsory contracting is applied to rectify the shortcomings offreedom of contract. The conclusion also emphasizes that the freedom ofcontract is still the most important principle in "contract law" and thenecessary condition encouraging transaction and promoting thedevelopment of market economy. Compulsory contracting is only torectify the abuse of freedom of contract, not to deny it.The novelty of this article is about the illustration of application ofcompulsory contracting to dealers who stand in the status of "factualmonopoly". This thesis states that "factual monopoly" is that dealertakes up the monopolistic station because of lack of competition inservice and products in certain time and area. Just like the dealer ofnatural monopoly, if the dealer of "factual monopoly abuse the freedomof contract and refuse to contract without justification, it will do damageto the benefit of offerer badly. So it is necessary that the dealer of"factual monopoly" should be imposed the obligation of compulsorycontracting.