On Pre-contract

With the unceasing development of the social economy life, It becomes the important matter for the transaction main body to stabilize and fix to an advantageous transaction opportunity under the transaction opportunity of the market economy fast changing. The contract isnot usually got in one action in the practice.In a long progress of concluding and consulting a treaty, the phenomena on the legal binding force of the preliminary agreement (precontract) in the parties become more and more. It is precisely based on such demand ,the precontract system was created. After "Contract Law"issues for execution, in a chapter of "booking contract" havenot been mentioned the precontract, but it was regulated soundly and specificly on the invitation of making offers, offer, commitment of the rules. Therefore, the many disputes were addressed in the practice of contract through the rules on invitation to make offers, offer,and rare booking applicable was enforced in legal judgment.Although in our educational world ,the system of precontract was universal acknowledged, but at present,the precontract system havenot been legislated in our country .In the theory,it havenot yet formed united notions on the concept, the potency, the responsibility undertakes of preconcept and so on. The scholars fail to pay adequate attention to precontract and only study it superficially in the classification of contract, so it lacked the effective holding of law and the theory basis in the judicial practice on this kind of dispute. It often initiates a series of disputes on the nature,suitness,aspect,potency and responsibility scope of the precontract in the practice.The first part is about the introduction of precontract. Through making analysis of system to the precontract,we have a thorough understanding on the concept, legislation style, theory basis and function of the precontract.As for two kinds of different understanding on the concept of contract itself, according to our country civil law tradition and the legislation practice, the definition of precontract is: Litigant both sides will work out the certain contract which means to express the unanimous agreement for the future. The theory basis of precontract must strictly follow the basic principle - honest credit principle which in the market economy transaction.The goal of the precontract is to fix to their own advantageous transaction opportunity.The second part, the author puts great emphasis on the constitution of an effective precontract, the determinants and the discrimination of precontract. Besides the constitution of the common contract, the precontract also must occur in the process of this concludes contract, its sign thing is concerned the certain behavior of this contract in the future, its content must have two basic essential factors: One, the meaning on the working out this contract, two is the request to constructs the offer of the contract.Using a comprehensive technique of a historical method and a comparative method,we make compare to the precontract and this contract, recognize explicitly the standard of precontract, simultaneously in the driven condition angle, namely this angle of the process of concludes a treaty from the precontract.we make the detailed discrimination on other agreements, namely the similar shape of the precontract: With concluded a treaty in the process other agreements and with concludes a treaty the after other contracts.The third part,on the analyses of the constitution and the function on precontract, we have the clear legal characteristic about the precontract through further excavates connotation, specially its sign thing is one kind the behavior to works out a contract. Basing on what kind of legal effect of the precontract, it mainly have two viewpoints: Must consult mediates and must conclude a treaty said. Through the comparative analysis, this article think the legal effect of precontract should adopt "must consult said" is more reasonable, and reflect litigant's real meaning. An effective precontract will produce works out the duty which this contract will continue to consult, if a side will not fulfill the duty of the consultation, the other side will request the side of breaking a contract to undertake this sponsibility on precontract, if a side will fulfill the consultation voluntarily but to have the evil intention, then might investigate this sponsibility on culpa in contrahedo.The fourth part, the author goes on to probe into the legal responsibilities in case of breach of the precontract. Because the precontract duty is the behavior duty, the precontract true goal is that restraining the parties to come according to an agreement to conclude a treaty this contract in the future,and fixing to a transaction opportunity.Thus the remedies of a precontract is not suitably to enforce. Its damage compensate is the faith benefit which produces based on the honest credit principle, the scope of compensation must limit on the foresighted rule, and be limited to the benefit of the fulfills.The fifth part, the author poses his suggestions on the establishment of the systematic structure of precontract at both the legislative level and the theoretical level.