A Study Of The Contracting Negligence Liability System In Judicial Practice

The contracting negligence liability system was born in Germancivil law, the master of Ihering’s "The Compensation of the Damage inCulpa in Contrahendo, Invalid Contract and Unestablished Contract",known as the great discovery of the law. In terms of Chinese civil law, theintroduction of the system of Culpa in Contrahendo is a gradual process,through the "economic contract law" to the "general rules of the civillaw", then the system of the contracting negligence liability was formallyestablished in "contract law". However, the limited provisions stated in"contract law" Article42, Article43and Article58are neither systematicnor comprehensive. Several important problems concerning the system ofthe contracting negligence liability, such as the meaning of culpa incontrahendo, if only in the condition of a void contract can apply thecontracting negligence liability, if the compensation scope of thecontracting negligence liability should be limited to the performanceinterest,"contract law" and the judicial interpretation do not answerclearly, unfavorable impact has been happened in judicial practice.With the development of research on the legal theory and judicialpractice, academic and practical circles gradually formed some consensus. Then, I try my best to sort out and discuss some problems which haveformed a consensus, and put forward three suggestions to perfect ourcontracting negligence liability system, with a hope of putting forwardsome reference of significance to the legal practice.