Research On The Pre-contract Legal System

The "Supreme People’s Court on the trial of law applicable to explain cases of contract disputes(hereinafter referred to as the contract for the sale of "judicial interpretation") is promulgated at 2012, it approved subscription book, subscription book, letters and other documents as the pre-contract, the provisions of the breach of contract responsibility and termination of the legal effect, it has the important significance to solve the legal dispute at the pre-contract. However, on the pre-contract, there are many problems to be studied in theoretical research and legal practice. This paper is a research on the scope, content and form, the liability for breach of the pre-contract contract, in order to perfect the pre-contract law system of our country, to build and improve the socialist legal system of China.This paper is divided into four parts.The first part deals with the basic theories of the legal system of pre-contract. The pre-contract is a contract agreed to enter into this contract in the future, it is a product of the consensus of the parties, an independent contract, enter into contract in the future is its subject. The pre-contract can be divided into priority agreement, agreed in principle to the agreement, contract unilateral promise, or divided into to be negotiated with the terms pre-contract, pending the pre-contract. Moreover, there are obvious limits between pre-contract and the contract、contract with condition or period. In addition, the pre-contract legal system will stable trading opportunities, protect the security of transactions; avoid market risk, promote the maximum utilization of funds; rich connotation of contract law, perfect the contract law system value.The second part examines the problem at the pre-contract law system of our country. First, the scope of application of the pre-contract is not clear, whether only practice contract can apply pre-contract, or all contract types can be suitable for pre-contract, is not very clear. Secondly, the content and form of the pre-contract is not clear, scholars have different opinions, for the Pre-contract form, there are "said" and "not said", for the contract form whether affect the pre-contract also have different opinions. Finally, the breach of pre-contract has uncertain performances, the contract liability, compensation for the loss, the responsibility of the deposit has uncertain performance.The third part studies of the pre-contract legal system of civil law and common law. Based on the civil law system and common law system in different countries for the pre-contract legal system, we put forward the legislative system of continental law system and Anglo American law system are meaningful for perfecting the pre-contract legal system of china. One, property reservation contract with general contract, and shall be specified in the Pre-contract obligation general principles; Second, the pre-contract shall be binding and traditional; Thirdly, the reservation requires no specific form, but except for the statutory form requirements; Fourth, the pre-contract can be applied to the actual performance responsibility.The fourth part perfects the pre-contract legal system of our country. First of all, all types of contract can apply pre-contract, and shall stipulate in the contract law in the general reservation; Secondly, the contents of the contract has the specific appointment, the two terms of pre-contract is essential: consultations on the outstanding issues of the agreement, and the agreement of the parties to the agreement constraints, content is requested to consultations on the outstanding issues, and the standards of judgment consensus is "objective standards of judgment". The pre-contract in principle is not to type, but the form and requirements of the pre-contract is asked by the contract; Finally, the actual pre-contract applicable to fulfill the responsibility does not violate the principle of freedom of contract, it should be based on the combination of subjective and objective to judge whether the actual pre-contract applicable to fulfill the responsibility. The scope of damages should be limited to the loss of reliance interest. At the same time, it should handle the relationship between default compensation properties and the punitive compensation, and the relationship between breach of contract and compensation for the loss of deposit.