On The Compulsory Public Service Contracting

PpPaper is divided into four parts:1. Background and connotation of compulsory contracting.Along with the ever-emerging public service corporations, the gap between the economic power and bargaining ability of parties to the contract is more and more enlarged in the actual society. To stick to the freedom principle of contract will always infringe on the vulnerable class'rights. The freedom principle of contract is less and less powerful in protecting and realizing the contractual justice. As the freedom principle of contract is more and more confined, the compulsory contracting was born at the right moment to maintain the factual equality of all parties, so as to achieve contractual justice. To confine the freedom principle of contract doesn't mean that the role of freedom principle of contract as the base of the Contract Law is shaken, and it rightly reflects the purpose of chasing the highest value of law: justice. The purpose for the law to protect any interest is to realize the justice in society. The compulsory contracting should contain compulsory tender and compulsory commitment. The so-called compulsory commitment is to make a commitment to the tender applied by the law to the contract subject and commitment by the Privity Party to the contract. The compulsory tender means to implement the tender applied by the law to the contract subject, and sent to other people.2. Analysis and types of compulsory contracting.There is a large difference in law between compulsory contracting and trade override. To take compulsory contracting as a kind of trade override lacks legal and theoretical basis. Compulsory contracting and mandatory contracting is also different: the former has the restriction on contract freedom while the latter abandons the contract freedom. However, the mandatory contracting takes the national command as the basis of contracting, and fundamentally rejects the agreement of the parties based on the freedom principle of contract; therefore it makes the contract meaningless. The compulsory contracting can be divided into two categories: direct compulsory contracting and indirect compulsory contracting. The former is compulsory to contract directly by laws and regulations, while the latter is compulsory to contract according to the presumption.3. Legal liability for violations of compulsory contracting obligation.Compulsory contracting limits the contractual freedom. But the limitation must be to an appropriate extent. Reasonable excuses for parties with the legal contractual obligation to refuse to contract must contain: Firstly, the parties with the compulsory contractual obligation mush have the ability to perform the contract; Secondly, the parties with the compulsory contractual obligation refuse to contract based on security consideration; Thirdly, the behavior of parties with the right of compulsory contractual must be in accordance to the general legal principles, and public order and good customs. It is more practical and reasonable to attribute liability for violations of compulsory contracting obligation as tort liability in China. From the composition of Chinese legal system, liability for violations of compulsory contracting obligation is more suitable for tort liability. Liability for violations of compulsory contracting obligation and tort liability must be consistent in compositional conditions. If viewed from actual conditions of our nation, China should also take mandatory measures to require the contracting party and relevant party to sign the contract. Generally, whether requiring contracting parties to sign the contract or not should finally be determined according to the specific situations.4. Legislative proposals on compulsory contracting of China.Several aspects shall be taken into consideration in legislation of compulsory contracting: firstly, the main body of obligations of compulsory contracting should be clearly defined, and it should cover the public service corporation closely related to basic living of people; secondly, suitable conditions of compulsory contracting should be cleared as to claiming the rights and obligations of the compulsory contracting parties with rights and obligations; thirdly, the content of compulsory contracting should be clarified as to whether the compulsory contracting is subject to compulsory tender or compulsory commitment. And the obligation details of the obligation party should also be cleared as well; fourthly, liability of parties with compulsory contracting obligations should be cleared and detailed, such as the main body of liability, the conditions, forms and calculation methods of the related compensation of liability.