On Compulsory Contracting

Freedom of contract has always been the basic principles of contract law, especially in the free capital socialist period. However, with the arrival of the monopoly capitalism period, the freedom of contract theory begins to be challenged. As it has been unable to meet the development of the monopoly capitalism economy, more and more malpractices emerge gradually. It pursuits efficiency but ignored the fairness and justice, hence, compulsory contracting system becomes popular as corrective measures of the said system. But throughout the law field both in the domestic and overseas, the study relating to the compulsory contracting system is not perfect. This paper further analyzes this system on the basis of the available data in the hope of providing the basis for future legislation and judicial practice.This article is comprised of three parts except for the preface and conclusion.The first part analyses the value of the compulsory contracting system. This system plays an important role among the freedom, justice and order. Compulsory contracting is the amendment to the freedom of contract and be consistent with it. It is the reflection of substantial justice in legislation and provides an opportunity for the legislation in the shifting from individual principle to social principle.The second part analyses the application of the system. The scope of application about the compulsory contracting is similar based on the legislative comb of its application both at home and abroad. But it is mainly used in the postal service, transportation, water and power supply, medical treatment and other public services or monopoly industries. The application conditions of the compulsory contracting must be clear, in order to avoid the trouble. Therefore, it should meet three conditions: Firstly, the existence of the duty of forced contracting should have the foundation of obligation source, which not only consists of the generalized law but consists of the legal rules. Secondly, it belongs to the public service industry or the natural monopoly industry. And the generic service industry shall not apply to this system, such as dinning, bathroom and so on. Thirdly, the contracting requirements must be reasonable, otherwise it allows the obligor to enjoy some counterargument right.The third part analyses the law of the violation of compulsory contracting obligation. There are mainly three kinds of theories regarding to the nature of liability bore in the violation of compulsory contracting:the theory of contracting fault liability, tort liability and independent liabilities. This paper raises my own conclusion:the responsibility bore in the violation of compulsory contracting is a special contracting fault liability, by means of analyzing the rationality and shortcoming of the above three theories. The form of civil liability to be born includes apology, compulsory contracting and damages, all of which has its own applicable characteristics and also can be applied either independently or jointly.