A Research On Remedies For Breach Of Precontract

The precontract is a contract that the parties have agreed to enter into a certain contract in the future and are a very special contract.In the context of the rapid development of market economy and the intensification of market competition,the two parties signed a precontract to fix the trading opportunities,thereby reducing the risk and cost of contracting.In recent years,with the high-speed operation of China's economy,the market became more active,the market participants in the transaction signing the precontract is also more and more common,the precontract has been widely found in such as commercial housing transactions,housing leasing,private lending field.However,the status quo of our legislation did not keep up with the pace of reality,"Contract Law" does not have the provisions of the precontract.In view of the frequent occurrence of the precontract dispute in practice,the Supreme People's Court promulgated the "Judicial Interpretation of the Sale and Purchase Contract" in 2012,in which Article 2 formally stipulated the precontract for the first time,and made clear the breach of the contractual nature of the contract,is of great significance.However,although the provisions of the judicial interpretation of the contract of sale established the independence of the appointment contract,but for the legal effect of the precontract and remedies for breach of the precontract,judicial interpretation is not explained,and these issues in the academic community also controversial.In the absence of guidance,judges around the country are often in trouble in the case of specific cases and eventually produce different findings.This paper attempts to further study the legal effect of the precontract and remedies for breach of the precontract on the basis of investigating the domestic and foreign legislation and scholars' views,and provide the help for the trial practice.Any theoretical controversy can not be divorced from the actual problems arising from the academic debate around the precontract is no exception.Before analyzing the specific problems,the author first collected the referee instruments made by the local courts,and selected several representative cases,and extracted the problems to be discussed in this paper,that is,the legal effect of the precontract,whether it is applicable to continue to fulfill and reserve the scope of default damages.In view of the legal effect of the precontract,the main view of the academic community includes"Should-contract Theory","Must-Negotiate Theory","Differentiating-content Theory" and "Viewed-as-contract Theory",By analyzing the advantages and disadvantages of each view,the author believe that the precontract is not only a manifestation of contractual freedom,but also respect for honesty and credit,combined with extraterritorial legislation and our own situation,we should adopt"Should-contract Theory".And for the two controversial issues about remedies for breach of the precontract,the author in combing the differences after the parties also clarified their position.On the one hand,the author tends to deny the application of compulsory performance,in most cases,the mandatory performance is not only contrary to the meaning of autonomy,nor in the interests of the parties,but also to the implementation of the court increased the difficulty;the other hand,the author does not completely exclude the form of liability for breach of contract,but only when the specific conditions are met,the court may make the corresponding judgment.On the scope of damages,the author advocate not to exclude the performance interests,and the interests of the opportunity should also be considered.While in the specific operation,the judge should not too much emphasis on the distinction of reliance interests and performance interests,using "contract maturity theory" to solve the problem.