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The Research Of Damage Of Reliance Interest For Wrong In Concluding A Contract

Posted on:2016-11-10Degree:MasterType:Thesis
Country:ChinaCandidate:J DingFull Text:PDF
GTID:2296330461963603Subject:Civil and Commercial Law
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Protecting the reliance interest is one of the important considerations in modern contract law to balance the Autonomy of Will and the Transaction Security.Freedom of Contract is the The main content of Autonomy of Will in Civil Law, but abuse of it will Lead to conflicts, so the Principle of Reliance Interest Protection becomes an important system in Civil and Commercial Law, it embodies the transformation of the modern private law from individual standard to social standard,and formal justice to substantial justice.The system about reliance interest in two legal system is different,they are the system of contracting fault liability in civil law countries and the damage of contractual reliance interest in common law system countries,but the former is worth learning,because w introduced it from the civil law countries.At present,the breach of contract wantonly,refusing to perform the contract and the contract fraud are of common occurrence,which seriously disrupt the market economic order,the system of contracting fault liability in our country is chaos,we cannot see the scope of compensation and the compensation method in the laws,so its perfection is practical significance to sound development of market economy in China.In this paper,on the basis of the protection of reliance interest,we try to get a detailed analysis and demonstration,which promote the system of contracting fault liability in our country.This paper can be divided into four parts except the preface and epilogue.The first part is about the basic theory of reliance interest.It includes reliance,reliance interests and their protection.The protection of reliance interests in civil law countries means the contract has not been made,in the common law it is one of contract remedies.From the perspective of the purpose of the introduction of reliance interest and its width extension,we think that reliance interest arises on mutual trust, which filled the entire contract process.This paper focuses on the damage of reliance interest,its theoretical foundation is the unity of the principle of honesty and the trust protection principle,its value goal is transaction security.The second part is about the comparative research of the system of reliance interest in the the two law systems.the system of contracting fault liability in civil law countries is important,form the Rome Law to the theory of contracting fault liability by a famous German Jurist, Jhering,and then to the modern lawmaking in civil law countries,it has become a basic principle of contract law.And the damage of contractual reliance interest becomes a important contract remedy in the common law countries.On the basis of the evolution,we try to get the comparison of the reliance interest in damage compensation system of the two legal systems,the essential difference was that the contracting fault liability in civil law countries is something like contract liability,but the latter is one of contract liabilities.Their constructions are different, but the theoretical basis is similar, their excellent experiences are worthy of our reference.The third part is about the present situation and defect of the protection of reliance interest in China.The Legislation on the contracting fault liability is relatively simple,its application is too narrow,limiting to the "Contract Law" Article 42, 43, 48 and 58.In addition,we cannot see the scope of compensation,the limiting rules and the compensation method in the "Contract Law",lacking of these systems leads to the results that the justice is difficult to unity.So we should learn from the foreign countries especially the civil law countries to produce the system of contracting fault liability.The forth part is about the perfection of damage of reliance interest for wrong in concluding a contract in China.First,we should insist on existing legislation mode,the system in common countries is reference limited.Second, On the problem which range is too narrow,we think that the damage of reliance interest not only can be brought by the contract which not in force or establishes even after becomes valid,but also by revocation of error intention,and defaulting in preliminary negotiation,revocation of advertisement and so on.Finally,we suggest that opportunity loss can be incorporated into the scope of compensation,the scope of compensation should be limited to the expectation interest,the foreseeable rule, the contributory negligence rule and the benefits rule also should be take into account.About the burden of proof,we should give different treatment to different situations on the basis of principle of "who claim, who quote".
Keywords/Search Tags:reliance interest, Compensation for damage, Contracting fault liability, System improvement
PDF Full Text Request
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