Attribute Identification And Responsibility Determination Of Precontract

Precontract is born from practice.Many trading opportunities in market activities are fleeting,but the fact or behavior of trading is not unaccomplished.In order to confirm the negotiations in advance and increase the possibility of the trading,many parties choose to sign a precontract at first.Due to the imperfection of our country's legislation on the precontract,there are a large number of disputes in practice arising without the confirmation of the laws.The precontract institution is worth further discussion.Firstly,on the basis of summarizing and combing the previous views and theories,this paper discusses and analyses the definition and nature of the precontract.Precontract refers to a contract directed to a contract,which has the characteristics of general contract,agreement,binding and certainty.At the same time,because the object of the precontract is to conclude a contract in the future,it has the characteristics of the time limit for the future conclusion of the contract.These characteristics distinguish a precontract from a unilateral promise,a priority agreement,a memorandum,etc.Secondly,the relationship between the precontract and the later contract and the legal effect of precontract are discussed.Four main points of views are analyzed: the former contract theory,the conditional contract theory,the dependent contract theory and the independent contract theory.The author holds that the precontract and the later contract are independent and interrelated.The precontract is the means and the later contract is the purpose.The independence of a precontract cannot be negated because of its subject matter.The precontract is a independent contract.Regarding the legal effect of the precontract,the most advocated are the theory of consultation and the theory of contracting.Based on the comparative study and the judicial practice in China,this paper holds that the contract should be valid by concluding the later contract.Subsequently,the article analyses and distinguishes the nature of the contract one by one for the legal provisions with the words "booking,pre-sale,advance receipt" in the legal norms of our country.Among them,"advance receipt" and "advance payment" commercial acts in the Consumer Rights Protection Law are not the scope of the pre-contract,and the pre-sale contract of commercial housing in the Urban Real Estate Management Law is not the pre-contract.The marine pre-contract insurance contract in the Maritime Law and commercial housing bscription book of the interpretation of Several Questions of Law Applicable to Contract Dispute Cases by Supreme People's Court,and Letter of Intent of Article 2 of "Interpretation of Legal Issues Applicable to Trial of Disputes over Sale and Sale Contracts by the Supreme People's Court" is in line with the definition and characteristics of a precontract and is considered as a precontract.In the second chapter,the form and scope of liability for breach of contract in the precontract system are discussed and studied.There are many similarities between the liability for precontract and the liability for negligence in contracting,but there are great differences in the source of liability,the burden of proof,the form of liability,and the form of liability for breach of contract.The scope of liability for breach of contract should also include the losses and interests lost.This paper discusses the three forms of liability for breach of contract in practice.At the end of this chapter,the way to deal with the content conflict between the reservation contract and the contract is also studied.Chapter three focuses on combing and exploring the case trial of the precontract system in our judicial practice.Firstly,it studies the mutual transformation between the precontract and the later contract which is often encountered in practice.Secondly,it studies the judicial practice status of the commercial housing precontract,as well as the judicial practice of the precontract in the fields of sale contract,lease contract and engineering construction,and combs the typical judicial viewpoints.Finally,inspired by previous views of some scholars,this paper discusses the feasibility of the application of the reservation contract system in the bidding process,which has a good theoretical basis and practicability.In recent years,judicial practice has also begun to explore this.