The Study On Legal Effect Of Pre-contract

In recent years,with the market subject's growing attention to trading opportunities,the application frequency of pre-contract increases,and a large number of disputes and cases arise.In order to regulate the legal relations,the judicial interpretations promulgating by supreme court in china made general provisions,but it doesn't give a clear definition of compulsory performance and damage compensation for breach of contract,so that related judicial practices are much controversial,which will not only be detrimental to the judicial authority and certainty,but also will damage to interests of the parties.Therefore,to clarify the legal effect of pre-contract is of great important practical significance.In order to solve the problem,this paper,based on the independence of pre-contract,will make a concrete analysis of the related concept about pre-contract legal effect,that is,making a distinguish between pre-contract and contract,liability for breach pre-contract and contracting fault liability;starting from the problem arising from the case analysis of pre-contract legal effect,this paper focuses on the study of pre-contract legal effect from the perspective of legislation and judicial,it can be concluded that,no agreement can be reached on the question of pre-contract legal effect,for Chinese legislature and judicial authority.And then,allowing for the four kinds of theories in current theory fields,this paper puts forward a set of new criterion recognizing the legal effect of pre-contract,that is,intention to pre-contract and integrity of pre-contract clause are deemed to be the recognized standard.That's why intention to pre-contract is autonomy of will of the parties in subjective aspects,and pre-contract clause is autonomy of will of the parties in objective aspects.At the subjective and objective basis of pre-contract einigung in the parties,this paper will clarify the pre-contract into two types: compulsory contracting pre-contract and pre-contract of negotiating effect.At this time,according to analysis of pre-contract type,this paper also makes a concrete research about the application of pre-contract legal effect to responsibility of breach,which makes a reasonable response to the problem triggered by compulsory performance and damage compensation for breach of contract in judicial practice.For the pre-contract.there are many similarities and differences in pre-contract and ordinary contract.Hence,at the legal system construction of pre-contract in contract theory,we would not only take pre-contract's characters into consideration to make special project,but also,ensure that pre-contract system is consistent with current contract law.And so,the writer hopes,this paper will make a contribution to the solution to application problem of pre-contract legal effect and the perfection of contract law,by the analysis and research for pre-contract legal effect.