Research On The Legal Problem Of Pre-contract

With the prosperity of economy, the important position of contract in the economic life becomes more and more prominence. The protection of contract also gradually extend to the contract before and after(before the contract becomes effective and after the contract reaches its end), not only focus on the period of the contract becomes effective and its end. The put forward of first contract obligation and gradual obligation is example. However, according to the existing legislation in our country, the parties’ reliance interest before the contract become effective are only protected by the responsibilities of consulting negligence. Since it has the characteristics of the statutory and passivity, the protection of parties’ interest are not enough. The emergence of pre-contract overcome this deficiency to a certain extent, change passive protection to active prevention in advance, it’s also of utmost respect for the freedom of contract and real means of parties.Pre-contract is the main content of this article explores. Except the preface and epilogue, the paper will be divided into five parts:The first part is the origin and evolution of the pre-contract. This paper focuses on the research of the pre-contract in civil law system. At first, from contracts of major affair in the Roman law, and from the characteristics of its free sex and physical properties to research the original background of the pre-contract. Then, starting from the France which is the first country to make pre-contract into laws, mainly to show the foreign country’s advanced legislation achievements for reference, such as Germany, Japan and the Swiss. From combined with a specific contract and to make an appointment to the general provisions, the applicable scope expanding gradually, and summarizes the evolution and the reason of it, as the below.The second part mainly discusses the basic knowledge of pre-contract. From the definition, nature, characteristics and consititution to make an appointment firstly. Ensuring that the nature of per-contract is contract, it must contain the future contract and its content wih certainty, otherwise difficult to call it’s a pre-contract. In the type of booking summary part, introduces the France, the United States and the views of scholars in our country, and on this basis to think the new standard-“whether the parties have agreed on duty” to make a new type classification, so the pre-contract are divided into the obligations agreed upon with the obligations agreed upon booking appointmentsr. And also make a comparison with some easy mixed concepts, as a letter of intent, with effective conditions of the contract and contract, to clear the concept of the pre-contract.The third part of the effectiveness of the pre-contract, is the most controversial part of the reservation problem. This part around the validity of effectiveness, the parties’ obligation, liability for breach of contract and validity period. After comparing all kinds of different views, this paper puts forward the view: when the parties don’t agreed with the obligation, still should adopt “must conclude a treaty”. Basis the nature of pre-contract is contract, its principle of liability for breach of contract should be consistent with the general contract, adopt no-fault liability principle. The form of liability for breach of contract and exemption resons that are provitions in the “contract law”, in addition to continue to perform the obligations shall not apply to the pre-contract, others all can be applied to pre-contract. Of course, continue to perform must be careful and must meet the legal restrictions. For the effectiveness of the reservation period can be agreed by the parties, in the absence of an agreement with 6 months advisable, urged the parties to perform obligations timely.The fourth part from the attitude that court treat the pre-contract to observe the pre-contract’s situation in our country. Research on the net of the people’s court 2013 published 180 cases to make an appointment, from the court ruled standards, the attitude about the effectiveness for pre-contract and way to deal with the liability for breach of contract these three aspects make analysis. Whether an agreement with the parties’ intention to make a new contract in the future, is the standards of the court to ensure the pre-contract. The court tend to identified the parties should burden the obligations of signing an agreement. On the bear the liability for breach of contract is same to general contract, for continue to preform the contract wheather can be used, the court have different opinion, but most of the court thought that can be applied.The last part discusses the necessity of pre-contract into laws and legislative outlook. This paper starting from the existing disadvantages of laws: concept and effectiveness of pre-contract is not clear, then to meet the needs of practice to put up with perfecting suggestion. This paper proposed to make pre-contract into laws and regulations it in the general rules of "contract law" or debt general rules of “civil law”. Also designed a legislative proposal, to look forward to perfect legislation.