Forced Contracting Legal Issues

The freedom of contracting, absolute ownership and fault responsibility are regard as three principles of classical contract law theories, and the freedom of contracting is the core of the autonomy of private law. The parties' mutual assent emphasizes absolute freedom and absolute effectiveness, which greatly promoted the economic development at that time. With the capitalist world from the free competition to monopolistic competition, principle of the freedom of contracting has also experienced from being on the rise to decaying. The lose of equal positions between the main parties and the appearance of incomplete competitive market caused the civil law notion changing from formal justice to essential justice. With the rectification of the freedom of contracting and the practice of essential justice, the compulsory contracting appeared.The compulsory contracting is a kind of lots of means restricting on the freedom of contracting. As a social phenomenon having attracted more and more attention, it plays an important part: in the field of realizing contract justice, defending vulnerable group benefit and maintaining benefit of social public interests, etc. In China, the compulsory contracting have not yet arouse sufficient attention ,theoretical studies only have a simpler structure, the relevant provisions of the legislation is unclear, resulting in different standards of judicial practice, the compulsory contracting in our country is facing embarrassment. This thesis attempts to discuss the compulsory contracting basic legal system, analyzes classical compulsory contracting obligation and liability, and give propositions to consummate compulsory contracting legal system.Besides the introduction, the conclusion, the main body of this thesis consists of four parts. Titles and primary contents read as follows:Part I: emergence and development of the compulsory contracting. Firstly, this part inspects the history of the freedom of contracting in classical contract law theories, formal justice and essential justice. The appearance of concrete personality and incomplete market caused classical freedom of contracting pattern collapsed. Secondly, this part discusses that although the compulsory contracting appears both in the continental and the common law system, the development in different country is not balanced, then introduces the actual situation and the flaw of the compulsory contracting legal system in China.Part II: connotations of the compulsory contracting. This part is primary content of this thesis. Clarifying the concept of compulsory contracting has been regarded as the most important task, this thesis argues that a broad concept should be adopted, then analyzes characteristics of compulsory contracting and the discrimination from other related concepts. According to different standards, the compulsory contracting can be divided into compulsory offer and compulsory acceptance, relative compulsory contracting and absolute compulsory contracting, direct compulsory contracting and indirect compulsory contracting. Among these distinctions, direct compulsory and indirect compulsory contracting have importance significance.Part III: application of the compulsory contracting. This part is core content of this thesis. After analyzing the applicable scope of direct compulsory contracting and indirect compulsory contracting, this part clears the attendant obligations and reasonable defenses of the compulsory contracting obligations.Part IV : legal liability of violating compulsory contracting obligations. This part discusses characteristics of legal liability of the compulsory contracting, indicates that tort liability is the nature of form of liability for violating of the compulsory contracting obligations. This opinion is practical both in our contract law theories and judicial practice.For making up for the lacking of legislations and confusions caused by, for a combination of theory and practice, considering the practicality of proposals, suggestions are put forward. According to flaws, suggestions should include: on one hand, adding general provisions of the compulsory contracting obligations; on another hand, expanding the applicable scope, clearing the suitable condition and consummating the legal liability regulations of violating compulsory contracting obligations.