On The Forced Contracting Obligation

The "freedom of contract" is a matter of principle in contract law. It is the principle of law to achieve and guarantee the smooth exchange of commodities. It plays a basic role in the market mechanism. However, absolute "freedom of contract" may cause substantial injustice through the formal equality. Thus modern civil law restricts the freedom of contract partially. Because both contracting parties can not fall into the same competitive degree forever, the "freedom of contract" of the strong one must be restricted for the fair of contract, when the demand of one contracting party must meet through the other one, when the strong one don not enter into the contracts which might infract the legitimate rights and interests of the weak as well as of the public. The forced contracting obligation is one of the avenues to the fair of contract. After the capitalism society coming into the monopoly capitalism, it is always happened that the strong one of economy always abuses the principle of "freedom of contract" to infract the profits of the weak. The forced contracting obligation plays a more practical significant part in balancing the profits of both contracting parties.The law set forced contracting obligations to protect the interests of vulnerable groups and the public, and to run the society fairly and orderly. This is also the theoretical basis for the existence of forced contracting obligation. Comparative studies of the laws of the forced contracting obligation about home and abroad shows that the main application principles are honesty and credit, public order and good customs, justice, and prohibition of abuse of rights. The scope of application can be typed into the specific field of public utility, the protection of vulnerable groups, the protection of the rights and interests for life and good health, the dominant or monopoly enterprises in the market, certain political and economic considerations to the state, and so on. It prescribes the forced contracting obligation for the obligor. He has to bear legal liability, if he breaks the law. For the forced contracting obligation belongs to the area of private law, the legal liability should be studied deeply in civil liability. Now, there are some theory points of views about the legal liability of violation of forced contracting obligation in the academic circles such as contracting fault liability, liability for breach of contract, independent liability, general liability, tort liability. The legislative and practical experiences in China show that it is more reasonable and logical to adopt the tort liability theory point of view when somebody violates the forced contracting obligation.To avoid creating new social injustice, at the time the law prescribes the forced contracting obligation, it should also prescribes that the obligor can refuse to covenant and do not assume responsibility, when it occurs the force majeure, the illegal aim of the offer or violations of the principle of public order and good customs, the improper offer, Optional Contracting obligor, and other reasonable situations. However, Contracting obligor shall perform accompanying obligation like to assistant, inform care, protect its counterpart, and to be faithfully as well. The theory and the practice of the Western Country had had an in-depth study since the obligation of forced contracting came into being. Chinese Law has set scattered contracting obligations, but it is incompletely. It is lack of general provisions and there are some limitations in the scope of application. The time for promise is not assured. The applicable conditions the legal responsibilities are incomplete. So, to perfect the prescripts of Chinese legislation about the forced contracting obligation, we should prescribe the general terms, broaden the scope of application, norm the applicable conditions, clear the time for promise, clear the legal responsibilities, and make the judicial interpretation work.