Study On The Reliance Interests Protection In The Stage Of Contracting In China

In the current legislation of our country,both the pre-contract system and the liability for contracting fault system reserve the reliance interests before the establishment of the contract.From a theoretical point of view,the pre-contract system aims to promote the establishment of the contract,thereby fulfilling the performance interests to fill in the loss of trust interests.The liability for contracting fault system only forces the faulty party to directly compensate for the reliance interests' loss.Besides,the liability for breach of the pre-contract has the unparalleled superiority in liability attribution,burden of proof and remedy.However,the operating result of the pre-contract system need be verified by judicial practice.How to arrange the pre-contract and the liability for contracting fault also demands to explore.This article is divided into the following three parts:The first part examines and compares the reliance interests' protection rules of the German and American law,including the appearance of right system,the liability of contracting fault system,the liability for breach of contract system,and promissory estoppel system.The scope of application covers the period of the former and validity contract.The requirements include the objective existence of appearance facts,the formation of reasonable trust by goodwill relatives,the liability attributable of non-beneficiaries.The relief methods contain compensating for the reliance interests and the expectant interests.And the value orientation lies in the pursuit of transaction security and efficiency.The second part adopts the method of empirical research to explore the judicial operation of the pre-contract system,and a comparative analysis of the pre-contract system and the liability system for contracting negligence found that their actual legal effects were similar.On one hand,it is difficult for the pre-contract system to actively protect trust interests.Courts usually exempt the parties from the liability for breach of the pre-contract if they had good-faith consultations.Therefore,the parties are actually required only to undertake the obligation of good-faith consultations.Besides continued performance is rarely used in practice due to the principle of freedom of contract,which leads to the pre-contract is difficult to promote the contract establishment.On the other hand,the liability for breach of the pre-contract has no obvious advantage over liability for contracting negligence.The determination of both needs to consider whether the perpetrator violated the obligation and its subjective status.The third part uses the commonalities of the reliance interests' protection rules to review the fault liability of contracting in our country,and puts forward the perfect suggestions from the perspectives of the applicable situations,the constitutional requirements and the scope of compensation.The fault liability of contracting should be freed from the constraints of the previous contract and be applicable when the contract law and the tort law cannot relieve the reliance interests' loss.Besides,it should change the "good faith principle—the precontractual obligations—fault"judgment thinking and focus on the reasonable trust.The amount of compensation should be expected to the expect interests.