Obligation On The Contracting Process

This dissertation is focused on the disclosure duty in the contracting course (thereinafter called disclosure duty). In the research and practice field in China, disclosure duty is seemed as a kind of pre-contract duty and is regulated by culpa in contrahendo. In our days, there are plenty of research papers about disclosure duty, but these papers all emphasize on special contracts such as insurance and medical service ones. And the concept & existing foundation of disclosure duty need to be stipulated. The dissertation tries to solve these problems.Besides introduction and conclusion chapters, the article can be divided into the following five chapters:Chapter one is about the concept and applying field of disclosure duty, which is the premise of the total research. This article only pays attention on the disclosure duty during contracting period. And then, through the analysis of applying field and research situation, it will clarify the importance and necessity of the research into disclosure duty.Chapter two is about the existing foundation and fulfillment acquirements of disclosure duty. The author begins with Caveat Emptor principle, and finds that the development of disclosure duty reflects the trend of some mortal duty developing into legal duty. To analyze the existing foundation of disclosure duty, the author uses the concept of information asymmetry from the point of economic analysis. As to the performance standard of disclosure duty, the author will do research from different aspects of performance such as the basis, period, scope,etc.Chapter three to chapter five is the core of this article. Law's importance lies not only in regulating people's act, but also in damage compensation. Therefore, the legal consequence of breaking disclosure duty is crucial to the research. And this paper will talk about this question through three chapters.Chapter three concentrates on the legal effect of contracts that are concluded with one party breaching disclosure duty. To this topic, France law expands the fraud theory so that the victims can announce the contract void, however, Germany law have the principle called "contract-abolishing request basing on negligent in contracting". The author agrees with France law on the base of the study of researching Chinese law.Chapter four is about the basis of requisitional right against breaching disclosure duty. The author will research France law and Germany law and holds that disclosure duty is a kind of pre-contract duty, violating which must undertaking culpa in contrahendo.Chapter five focuses on damage compensation due to violating disclosure duty. The author holds that the damage compensation includes reliance interest and inherent interest compensation. Inherent interest compensation is comparatively simple, and reliance interest compensation is where this chapter focuses on. On the base of comparative jurisprudence, the author talks about the scope of compensation, and maintains that reliance compensation should be limited by foreseeable principle, mitigating principle and rule of vorteilsausgleichung. However, contributory negligence cannot apply in reliance compensation.To sum up, the paper tries to fully borrow research fruits both in China and aboard, use cases and precedents from continental and common law system, so as to come up with some own ideas about disclosure duty in the contracting course.