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Research On The System Construction Of Intentional Interference With Prospective Contractual Relation In China

Posted on:2013-02-27Degree:MasterType:Thesis
Country:ChinaCandidate:L SunFull Text:PDF
GTID:2246330395451978Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The research on intentional interference with prospective contractual relation hasbeen found in the countries of common law. Both theoretical research and actualapplication have been considerable development. But in the countries there is no specificlegislation about the issues, and the research in our country is also very weak. Theproblems have not been solved which about the definition of prospective contractualrelation,the nature of contracting interests, the necessity of giving the legal protection forthe prospective contractual relation, and how to protect the relation.The words of prospective contract quoted from Restatement (Second) of Torts, it isnot a kind of contract but a shorter form of prospective contractual relation. In order toreach a lawful and valid contract, the parties begin to meet and exchange views with eachother. The legal relationship formatted in the process is called the prospective contractualrelationship which plays a crucial role for the deal, but it has been often interfered by thethird party and outside the protection of law.It is necessary to establish law and regulations in tortuous interference withprospective contractual relation. The first, the nature of contracting interests is a kind ofopportunity benefit, the damage of which is different from the usual property damage,and it is a kind of pure economic loss. Although the attitude of the protection on the pureeconomic damage is strict and conservative in most countries in the world, more andmore countries tend to provide protection for the important pure economic loss. Thesecond, the opportunity benefit in the contracting progress should be protected by law,because the protection is an addition for the transaction security and justice, as well as tokeep the efficiency and stability of trade. The third, the article2of Tort Law in ourcountry is ‘big’ general clause, and it protects rights as well as interests. The contractinginterest is just a kind of civil legal interest and is the protection target of tort law. Theforth, because there is not an existing contract, the contract law could not provideprotection for the prospective contractual relation. Although the company law couldprovide protection for some opportunity benefits, it could not protect all the types ofopportunity benefits. The foreign countries established the rule about tortuousinterference with a prospective contractual relation. Because protecting the prospective contractual relation fit the function and the protected object of tort law very well, it isreasonable that using tort law to protect the prospective contractual relation.The legislation could draw lessons from Anglo-American law system and civil lawsystem for establishing the system of tortuous interference with prospective contractualrelation in China. This theory’s history can be traced to early Roman law, and theresearch about it goes deep gradually. So far, a comprehensive theory has been found inthe United States, litigation based on interference with prospective economic advantagehas increased in recent years, and the elements of interference with prospectivecontractual relation have been found in United States. There is no specific legislation onthe issue in civil law countries, but the protection on the pure economic loss could givesome enlightenment. The scope of protection target of tort law has been decided by thegeneral clause of tort in civil code. The general clause in tort law in Germany and Franceprovide the same protection for the rights and interests, which make protecting thecontracting interests by tort law possible. Therefore, under the provisions of the article2of Tort Law, the tortious interference with a prospective contract is a kind of generaltortious activity, which contains a wrongful act, damage and damage to the plaintiff as aresult of the interference. But the actor does not commit liability while engaging inlegitimate competition, performing the duties and giving honest advice.
Keywords/Search Tags:Prospective Contractual Relation, Contracting Interests, Pure Economic Loss
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