Appointment Identification Study

With the development of the market economy and the issued <The supreme people's court about buying and selling contract dispute case applicable law explanation of the problem>,more and more precontract disputes have appeared,and this paper therefore mainly discuss one difficult problem in the precontract disputes.Start with two cases dealed by The Supreme Court,which mainly stands out the complexity of the affirmation of precontract.And this part teases the precontract disputes of the current judicial practice.And it argues that the most difficult case in the current judicial practice is the affirmation of precontract.Based on the current legislative system and doctrine,this paper holds the viewpoint that the root of the affirmation of precontract in the current judicial practice is in the the expression and understanding of the characteristics and the concept of precontract in academic.This paper just start from the concept of precontract,it hold the idea that the connotation‘reach in the future'in the traditional concept of precontract has some certain radition,but the connotation should be narrowly interpreted.Through the the view of the legal history and comparative law,this paper holds the view that the concept should also have the the characteristic of barrier,and the feature also constitute the most important element in exploring the purpose of contract and the parties' inner meaning.Based on the excavation of the feature,we could give precontract the following definition: Because of the factual or legal obstacles,making the parties agreed to further entered into contract in the future.From the concept,in the operation,in addition to investigate the contract context,contract background also should be inspected to explore the purpose of the contract.The system interpretation and other methods should be comprehensively used to qualify the contract,to avoid the form of review.At the same time,the parties only have the right and obligation to make the real contract,if it is found that the parties also bear the rights and obligations in this agreement,the contract should be qualified the real contract.Therefore,the subject matter of the contract can also examine in turn to test the nature of the contract.From the teased common case types in the practice,it can typely distinguish between precontract and contract,and affirm the nature of contract by these methods.At last this paper differentiates and analyses the understanding and application of the rules which are referred in the process of the affirmation of precontract.Courts shall directly applicate the article one of <Interpretation Two on Contract Law>,which meaning the contract shall be affirmed the real contract when it prossess the subject matter and price,which may lead to ignoring the parties' inner meaning,and then generating wrong affirming on the nature of contract,so the mathod that the article one is applicated directly is short of validity,and the core is to grasp the concept of precontract.The contract referred in the article five of the < The law explanation of buying and selling contract of house>should be affirmed the contract.The parties should contribute legal relation of the contract when they perform after concluding the precontract,and the content of the contract shall refer to the content of the precontract.The future<Civil Code>should stipulate the connotation of precontract in its‘contract part',to reduce the mistake of understanding and application of law in the affirmation of precontract from the system.