Forced Contracting Theory

The doctrine of freedom of contract is an important principle of contract law, which safeguards contract justice greatly. When more and more forms of contract appear and contracts are widely used in the field of public service, the absolute freedom of contract can' t realize social justice, so the doctrine of freedom of contract is gradually constricted by a series of legal system. As one of the means to make up the deficits of the doctrine of freedom of contract, compulsory contracting is developed in the legal fields in different countries and becomes an important way to realize social justice. In review of recent research all over the world, the present academy research on compulsory contracting is a little and not deeply enough. The existing research mainly focuses on the concepts and types of compulsory contracting, the legal liability of violating compulsory contracting, and regulations in legislation. In current legal system of China, ambiguities and blankness still exist in the fields of compulsory contracting. This thesis is aiming at making research on compulsory contracting to provide theoretical support to the perfection of legislation and provide relief for the injured party.With a guide based on dialectical materialism and historical materialism, this thesis coordinates existing research and try to form a perfect style using the comparative analysis, empirical analysis and regulative analysis and other methods. Based on the style, the thesis states the author' s opinion. Besides the preface and conclusion, this thesis includes four parts.The preface states the background and great significance of the research of compulsory contracting in our country. This part tells us that it is necessary to strengthen the research of compulsory contracting when public service is becoming more and more prosperous.The first part is about jurisprudence analysis about compulsory contracting. The thesis analyses the origin of compulsory contracting, pointing out that the occurrence and development of compulsory contracting is closely connected with the doctrine of freedom of contract. This part states the concept, classification and characteristics of compulsory contracting, and analyzes the distinctions between compulsory contracting and related concepts. The thesis agrees that compulsory contracting shall include compulsory offer and compulsory acceptance. The offer and acceptance become a kind of obligation under the condition of compulsory contracting. And silence may act as a form of acceptance. In spite of some characteristics of public law, compulsory contracting shall still be mainly regulated by private law.The second part mainly discusses the application condition and fields of compulsory contracting .It illuminates that the application of compulsory contracting shall be on legal ground. The contracting demand shall not extend the service ability, the service scope, terries and period. And the act violating compulsory contracting obligation shall lead to loss to the party. The person with compulsory contracting obligation may refuse to fulfill the compulsory contracting obligation if the above condition cannot be satisfied. Then this thesis analyze the significance of applying compulsory contracting in realistic life, which provide the basis for further research.The third part mainly discusses the nature of the civil liability violating compulsory contracting obligations and the means for relief. The thesis agrees the nature of the civil liability violating compulsory contracting is a kind of special mistake of contract responsibility. The thesis discusses the distinctions between such liability and normal special mistake of contract responsibility. The author suggests that the means of such liability can be stipulated as fulfilling compulsory contracting obligation or paying damages. When fulfilling compulsory contracting obligation becomes impossible or is unable to make up the loss of the party injured, damages shall be claimed.The four part focuses on present condition and shortage of legislation in the fields of compulsory contracting. Corresponding to the defects illustrated in this part, the thesis puts forward some suggestion to improve the legal system of compulsory contracting in our country. For example, enlarge the application fields, unify legal regulation, stipulate the time for acceptance, and define the civil liability of violating compulsory contracting obligation.The conclusion states that the market economy needs the doctrine of freedom of contract to operate effectively. On the other hand, the harmonious society need compulsory contracting to make constrictions on the doctrine of freedom of contract to realize social justice .So it' s necessary for the country to impose compulsory contracting obligation on parties of some contracts. And at the same time, compulsory contracting need to be regulated when applied, so as to avoid abusing rights.The novelty of this thesis is about the characteristics of compulsory contracting. Under the condition of compulsory contracting, the contract shall still be concluded following the rules for offer and acceptance. The offer and acceptance become a kind of obligation . In addition, the nature of the civil liability of violating compulsory contracting obligation is a kind of special mistake of contract responsibility .The thesis discusses the distinctions between such responsibility and normal mistake of contract responsibility, and deems fulfilling compulsory contracting obligation and paying damage as means of relief, which provides theoretic support for the research. In the end, the thesis puts forward suggestion to make the legal system of compulsory contracting more perfect on two sides .One is to make new regulations in the general principle of contract, the other is to improve current regulations in special fields of law.