On The Effect Of Pre-contract

To make an appointment contract system was originally derived from Roman law on the contract, the contract was intended to ease the physical properties to make up for lack of contracting fault liability relief to more fully protect the interests of the trust transactions. In recent years, as traders focus on trading opportunities, frequency of use of the reservation contract growing, thereby generating a large number of reservation contract disputes. In order to regulate the reservation contract trading relationship in 2012 "s Court on the Application of Law for Contract Dispute Issues" validity Article 2 appointment contract made general provisions. But for the purposes of judicial practice, which states that it can not meet the needs reservation courts to resolve contract disputes, so that judicial practice now IF referee controversy. This will not only be detrimental to the judicial authority and certainty, would prejudice the interests of the parties. Therefore, the moment to sort out reservation contract validity problems of determining the effectiveness of the specific content of the reservation contract has important practical significance.In this paper, in addition to preface and conclusion, mainly divided into three parts:Part I: An Empirical Investigation of the validity of the reservation contract. This section includes the empirical case selection and case studies and analysis of judicial practice in two aspects. According to the results of empirical research in this part of the reservation contract found in practice many problems in the fulfillment of effectiveness and relief effect. The former mainly in the judicial practice on the performance of the contract for each reservation choose to apply the doctrine of effectiveness, the latter mainly in the nature of the responsibility of breach of contract appointments, booking and reservation of breach of default on specific liability method.Part II: reservation performance of the contract validity. This section is divided into reservation contract performance and effectiveness of the doctrine of Discrimination two views of this article. In this section, for each appointment by the contract as well as the effectiveness of the doctrine of discrimination is amended to "distinguish said" as the basis, learn from each other, director of the doctrine, combined with the reservation contract types on the effectiveness of performance of the contract appointment was hierarchical division proposed "specific distinction, said" opinion on the specific content of the contract to fix an appointment effectiveness.Part III: the effectiveness of relief reservation contract. This section discusses the nature of the liability of breach of contract booking, booking appointments and breach of the principle of liability for breach of contract assume a specific way three problems. The nature of liability for breach of contract appointment, the paper support the "breach of contract" view, and to this covenant relationship contracting negligence liability and breach of contract between appointments were analyzed. Liability on the reservation breach the principle of the face of "the principle of fault liability" and "strict liability" controversy, this article would favor "principle of strict liability." On each reservation contract breach liability approach, this paper discusses deposit penalties, liquidated damages, damages and forced to continue to perform in four areas: on reservation deposit agreed in the contract, the nature of this article will be defined as both a breach of contract and the deposit legislation Kim agreed dual nature, under certain conditions agreed by the parties as well as termination of the deposit based on the nature; the amount of paper argues that unrestricted article 91 of China's "security law." On liquidated damages, because of its no big problems in practice, so that the reference herein is generally applicable to the contract, it did not do in-depth discussion. Forced to continue to fulfill the reservation, in favor of the responsibility for the way this article applies to reservation contract, and to make its specific application method. Damages, this paper appointment type of contract, the scope of damages divided into three levels: the reservation trust lost profits, appointment expected loss of profits, loss of profits expected this about.