Research On Legal Problems Of Pre-contract

Pre-contract is a kind of contracting that litigants choose under immature contracting conditions or defective legal system, i.e., a contract in which both litigants agree to sign a contract. With the rapid development of economy, sometimes transaction opportunities mean huge benefits. Whoever can seize the fleeting contracting opportunities will take advantages in the market. However, in the meantime, transaction process became complicated gradually and the transaction time became longer. Therefore, the increase of transaction cost and contradictions of transaction timing hastened this special contract formation. Pre-contract system has existed for a long time in foreign countries, and it has experienced a long development process. It has formed systematic regulations after combining economic situations in various countries. However, pre-contract is still a quite new concept in China, so theoretical researches are still in the starting stage and legal regulations are almost blank. Under this situation, there is still not a clear and unified judgment standard in juridical practice when facing pre-contract disputes and phenomena of different judgments for the same case happen quite frequently. This not only makes litigants lack of legal guidance in business transactions, but also credibility of the courts’ judgments would be influenced. Therefore, researches of pre-contract are imperative.It is difficult to find problems if there is only theoretical analysis without practical support, and it is suspicious of an armchair strategist. Therefore, the author has collected large quantities of judicial decisions about pre-contract and made comparisons and analyses. The author finds that disputes about pre-contract are mainly divided into three aspects: firstly, it is affirmation of pre-contract. There are some similarities between pre-contract, contract and documents without legal binding force, which results to difficulty in affirmation link. The key to differentiate these similar concepts is whether litigants reached the consensus of concluding a contract in the future. Secondly, it is pre-contract legal force, which is a problem with most disputes in pre-contract system. There are mainly four theories about pre-contract legal force, which are “Must-Negotiate Theory”, “Should-contract Theory”, “Viewed-as-contract Theory” and “Differentiating-content Theory”. After analysis, the author believed that on the basis of respecting litigants’ pre-establishment of legal forces, “Should-contract Theory” is the one that conforms to the establishment of pre-contract system most and it can exert effects of pre-contract and encourage litigants to make legal acts prudently. Thirdly, it is remedy for breach of contract and major contradiction is whether pre-contract is suitable for continuing to perform this remedy for breach of contract. In consideration of the legal forces of pre-contract, the author believes that it is suitable to continue to perform since it does not breach any laws about contract application performance; in the meantime, it is respect to litigants’ advance arrangement of legal acts.The author centers on the above three problems for analysis in the paper and combines relative pre-contract cases and current Chinese laws, trying to organize relative systems of pre-contract so as to be of some help to resolve litigants’ contradictions.