On The Perfection Of The System In Contracting Fault Liability

With the developing of Chinese market economy,social activities are more and morefrequently and the diverse needs are significantly enhanced, the transaction between resourcesand interests are everywhere, and this relates to the oral or written contract.Fraud,unfaircompetition,malicious consultations or other credit crisis are arrival at the same time with theage of "contract",and how to regulate such crises by legal norms has become a big challengefor people.However, the law has a limitation that does not give enough attention to thecontracting stage before the establishment of the contract.The theory of culpa in contrahendooriginated in Roman law,and originally developed by Jhering in1861, who systematiclyexposed the theory from the point of view of history and theory.After that,Germany and manyother countries established the theory of culpa in contrahendo by legislation,the ChineseContract law also regulate culpa in contrahendo as a new system clearly. The clear provisionof the law provides a basis for better use of the judge during the judicial practice of culpa incontrahendo. But we should also be aware of that the provisions of the Chinese Contract lawon this issue are not perfect, they never mentioned the scope of compensation and thestandards of compensation,and there have great argument on the element and the scope of theapplication of culpa in contrahendo.Apparently,such legislation resulted in a number of casesof culpa in contrahendo have no legal basis.From the judicial practice view, many cases havebeen raised depending on the provision of culpa in contrahendo, but because there is nocomprehensive and complete regulations on it, the judges always make a judgement by theirown thoughts of culpa in contrahendo.Therefore,, it is very necessary and urgent to improvethe provisions of culpa in contrahendo based on the needs of social reality throughlegislation.This is the reason to select this topic.This thesis is divided into there parts:The first part,an overview of the culpa in contrahendo.Described the generation of culpain contrahendo and its affection at first place.And then discuss the concept and characteristicsof culpa in contrahendo,and try to analysis its nature by discuss the domestic mainstream,thispart also discussed the constituent element briefly, and finally discuss the scope ofaccountability of culpa in contrahendo.The second part, try to analysis the type of it.According to the whether the contract hasbeen established and the reason of the damage to interests of trust, try to classify the type ofculpa in contrahendo. The third part, the reconstruction of the legal system of culpa in contrahendo inChina.Firstly, this part introduce the foreign legislation and relevant regulation, then try toanalyse the current status of Chinese legislation, and point out the shortage of it, and givesome advices on it at last.