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Research Of Compulsory Contracting System

Posted on:2013-11-21Degree:MasterType:Thesis
Country:ChinaCandidate:J F XieFull Text:PDF
GTID:2246330374974364Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Since modern times,the principle of contract freedom began to form,and becomethe core of the contract law. Freedom of contract greatly promote the social andeconomic development.However,as the autonomy of private law be stressed toomuch,and the freedom of contract began to absolute. Especially after the majorcapitalist countries entered the stage of monopoly capitalism,the monopoly enterpriseswho have economic advantages abuse the principle of freedom of contract to violatepublic interests, resulting in trampling of contract justice.In order to overcome theproblems resulting from the freedom of contract and maintenance contractjustice,many countries begin to provide legal system of compulsory contracting.Thelegal system of compulsory contracting of developed countries have beenperfect.However, the system of our country is relatively backward,also did not attractenough attention of the theoretical circles. Because of this,this article attempts todiscuss the legal system of compulsory contracting.Besides the introduction and the conclusion,the text is divided into four parts.Part I: The historical background and theoretical basis of compulsory contracting.Firstly,this part describes the development process of the principle of freedom ofcontract, and highlights its significance, and analyses its basic content.Secondly,through the analysis of the evils of absolute freedom of contract,this partanalyse the correction of contract justice on the freedom of contract, and pointes outthe historical inevitability of compulsory contracting system. Part II: The basic theory of compulsory contracting. Firstly,this part discusses theconcept of complusory contracting,and introduces the two viewpoints including broadand narrow sense,and analyses the nature of compulsory contracting. secondly,acomparison of notions of compulsory contracting,of standard form contract,ofcontract out of command,and of prior contract is conducted. Finally,this partintroduces and makes comment on the traditional classification of compulsorycontracting.Part III: Civil Liability for violation of compulsory contracting obligations.Firstly,this part pointes out that the nature of the compulsory contracting obligation iscivil obligations,which is a pre-contract obligation. If the obliger violate theobligation, he must bear contracting negligence responsibility which can apply thegeneral principles of tort liability. Secondly, this part analyses the form of civilliability which the violator must bear,and discusses the scope of the liability.Part IV: China’s compulsory contracting and its improvement. Firstly,this partexamines the legislative status of China’s compulsory contracting System,andPointes out many deficiencies and defects which Exist in China’s compulsorycontracting system. Then,according to the specific reality of our country,this part putsforward several suggestions of the perfection of compulsory contracting system.The primary achievement of this thesis lies in a systematic account of thefundamental legal issues of compulsory contracting. This paper defines the basicconcept of compulsory contracting,and make clear that the nature of the compulsorycontracting obligation is civil obligations,which is a pre-contract obligation,andbreach of that duty, it shall bear contracting negligence responsibility which can applythe general principles of tort liability. After make a comprehensive survey of China’slegislative status,this paper also put forward relevant proposals with a view of oursystem of compulsory contracting benefit theory and practice.
Keywords/Search Tags:justice of contract, compulsory contracting, pre-contract obligation, contracting negligence responsibility
PDF Full Text Request
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