Study On The Pre-contract Issues

In recent years, in economic activities, the documents, such as “letter of intent”,“Memo”, were widely used, but whether these documents can be identified as“pre-contract” or not, is controversial. In2012， as the “Interpretation of the SupremePeople’s Court on Issues Concerning the Application of Law for the Trial of Cases ofDisputes over Sales Contracts” was promulgated and implemented, the controversialissues of “whether the pre-contract as a formal legal concept” were resolved. The lawgives the “pre-contract” legal concept and the relief way, and opens up a new way forthe “pre-contract” into the contract law system, which has great significance to theacademic research and judicial practice.However, the provision of the “pre-contract” in the “Interpretation” is somehowcasual and broad. What kind of behavior can be treated as a pre-contract behavior,there is no consensus. At the academy, there are many different opinions forpre-contract. For practice, there are no clear guidelines and rules to follow in manyaspects, such as the responsibility imputation of Pre-contract breach, relief form, theamount of compensation ratio. In the judicial practice, the “discrimination” work isfull of challenges. In the legislative practice of our country,“Pre-Contract system” hasnot become a part of the contract law system yet, it is a flaw of legislation. Through the research on the above issues, the article starts from the issue "whatbehaviors constitute a per-contract", gives basic concepts of pre-contract, thenintroduces various theories on the effectiveness of the pre-contract, describes andproposes own opinions for the effectiveness of pre-contract, and summarizes that thedifferent binding effectiveness for the parties, at last analyzes the responsibilities ofpre-contract, and the difference on relief forms and responsibility taking betweenpre-contract and other contracts.The thesis uses empirical research method, supplemented with legal hermeneutics andcomparative research methods, through the theory, study on the legislation situation,concrete analysis of real problems, and reference to “Interpretation of the SupremePeople’s Court on Issues Concerning the Application of Law for the Trial of Cases ofDisputes over Sales Contracts”,“contract law” and other relevant laws, regulations.Though in depth deduction and analysis, then propose author’s new opinion.Describes the shortcomings relating to the pre-contract aspects in the current contractlaw system. At the same time, compares the specific attributes of pre-contract andgeneral contract, describe the significance and value of “pre-contract” and“pre-contract system”. And hope this thesis can be helpful to the perfection for thecontract legal system of China.