On The Judicial Application Of Contracting Fault Liability

Contracting fault liability refers to the civil compensation liability that shall be undertaken by the contracting party who violates the pre-contract obligation generated according to the principle of honesty and credibility, and causes losses to the reliance interest or inherent interest of the opposite party during the contracting process. Proposed by the German jurist Rudolf Von Jhering completely and systematically in1861for the first time, it aimed to regulate the civil injurious acts that were not involved in the liability for breach of contract and tortious liability, and to protect the legal interest of the contracting party. Meanwhile, it also illustrated the causes of default, infringement, voluntary service and unjust enrichment, which had a profound and extensive influence on the civil legislation and juridical practice in many countries. However, the contents in the contracting fault liability system were complicated and messy, and it was still controversial in related issues among various scholars who failed to reach an agreement. As a result, it led to different legislations in many countries, in which the stipulations were too general with little operability. Consequently, there were all kinds of problems in the juridical practice, which required studies on the contracting fault liability system, and it was extremely important.On that basis, the author started from the existing problems in which the judicial practice was applied in the contracting fault liability, which was perfected through concluding and analyzing the crux of various problems, and related suggestions to legislation were proposed. Besides the introduction, the paper was divided into five parts.In the first part, it was the existing problems of the contracting fault liability in Chinese judicial application. At first, starting from the issuance of Contract Law in China, the development history of contracting fault liability system was introduced briefly; then the cases related with contracting fault liability system in the magic weapon of the Pecking University were counted, and the real cases in the judicial practice were analyzed. As a result, there were usually three problems in the application of contracting fault liability system in China:firstly, the constitutive requirements of the contract fault liability were fuzzy; secondly, the contracting fault liability could not be distinguished from other civil liabilities; thirdly, there was a lack of specific rules for the compensation of contracting fault liability.In the second part, it was the reconstruction of constitutive requirements in the contracting fault liability. Starting from the various existing opinions about the constitutive requirements of contracting fault liability, both the advantages and disadvantages were concluded and analyzed, and reconstruction was conducted on that basis. It was concluded that the constitutive requirements of the contracting fault liability mainly included the following aspects. Firstly, the contracting party violated the pre-contract obligation generated according to the principle honesty and credibility; secondly, the behaviors of violating the pre-contract obligation occurred in the process of signing the contract; thirdly, the reliance interest or inherent interest of the contracting party was injured; fourthly, there was a causal relationship between the behaviors of violating the pre-contract obligation and the injury fact; fifthly, there was fault in the subjectivity of the contracting party that violated the pre-contract obligation. The problems, such as the pre-contract obligation, the beginning and end of signing a contract, etc. were analyzed, and it was considered that the assistance obligation, inform obligation, confidentiality obligation and protection obligation were the main contents of the pre-contract obligation. The behavior of the contracting party was in the process of signing the contract or not, it shall judge if there was reasonable trust relationship according to the specific situations of contact and negotiation. Such a standard shall be regarded as the beginning of signing the contract, while the contract would take effect at end of the signing process. It should also be noted that there was no necessary connection between the applications of contracting fault liability and the effect of the contract, namely the application of contracting fault liability was not on the premise of contract ineffectiveness.In the third part, it distinguished the contracting fault liability in the judicial application from other civil liabilities. The differences among the contracting fault liability, liability for breach of contract and tortious liability that violated the safety control duty were introduced with cases. At first, there were distinctions in the natures, doctrines of liability fixation, occurrence time and compensation extent of the contracting fault liability and liability for breach of contract; secondly, there were distinctions in the occurring space of liabilities, generation foundation, scope of compensation and demands on the subject of the contracting fault liability and the tortious liability that violated the safety control duty.In the fourth part, it analyzed the related problems in the compensations of contracting fault liability. At first, it was considered that besides the loss in the reliance interest of the contracting party, the loss of inherent interest shall also be included in the compensation scope of the contracting fault liability. Furthermore, the compensation for the former shall include not only the direct loss, but also the indirect loss; secondly, the calculation method for the compensation amount of the contracting fault liability was proposed, the calculation for the indirect loss of the reliance interest was illustrated in details specially, and three conditions in which indirect loss was generated were put forward, and the calculation method for the specific compensation amount in each condition was analyzed. Thirdly, it was believed that the principle of fulfilling the interest shall not be applied in the compensation of contracting fault liability, and instead, the principle of full compensation shall be applied. In addition, it shall continue to obey the fault-balance principle, and it shall endow the contracting party with sufficient free choice when the body or property rights of the contracting party were injured.In part five, it was about the suggestion for perfecting the contracting fault liability in China. Starting from the Contract Law in China, the clauses related to the contracting fault liability system were analyzed simply, the defects in legislation were analyzed, and the following amending suggestions were proposed:firstly, the independence of contracting fault liability shall be highlighted and connected with the current legal system; secondly it shall expand the application scope of confidentiality obligation; thirdly, it shall strengthen the logic rigor between articles of laws; fourthly, it shall clarify the specific compensation rules for contracting fault liability. On that basis, the author attempted to reconstruct the rules of contracting fault liability system in the Contract Law in China.