An Empirical Study On The Judgment Of Appointment Contract

Article 2 of the judicial interpretation of sales contract is the first time in China's law to involve advance contract,which is an important development.However,the provisions of the interpretation on the legal effect and remedy for breach of contract are vague,which leads to its failure to play its due role in judicial practice.This paper analyzes the legal effect and remedy for breach of contract based on the case of judicial judgment of advance contract.The article consists of four parts,including the following contents.The first part is mainly about:Starting from the judicial judgment data of the reservation contract,the case is searched by the keyword "appointment contract" in the Chinese judicial document network.After excluding some similar and less controversial cases which are repeated,wrong and tried by the same court,100 representative cases are selected according to the research content of this paper to explore the application of appointment contract in judicial practice.Then,it analyzes the characteristics of all the data and the features of 100 selected cases as a whole.Starting from the source,time,trial level,trial court,judgment result and region of the case,it puts forward the purpose of this paper.The second part is mainly about:Types of judgment data on the validity of advance contract.At present,there are four theories about the legal effect of an appointment contract.Different from the theoretical research,there is no specific point of view in judicial practice.But from the perspective of data analysis,there are some similarities between the trial paths of different courts.In this paper,the trial path of these similar judgments is combined with the theoretical point of view to carry out the type research,and put forward the point of view of this paper: the first element is the expression of will,and the second element is the content of the contract.The third part mainly includes:Analysis on the judgment data of the remedy for breach of contract in advance.Under the path of "appointment-negotiation",the scope of the breaching party's compensation for the non breaching party's breach of the appointment contract is only the loss of trust interest in this contract.On this basis,the court will consider the market premium,the seller's cost and the house payment paid by the buyer in the commercial house sales contract,and compensate the buyer's opportunity interest loss as appropriate.Under the path of "appointment-fulfillment",there are two ways of judging.First,compensation for the loss of trust interest is made according to the breach of contract of the breaching party.Second,the scope of compensation is limited to the loss of the performance interests of the observant party or the interests of the breaching party from its breach of contract.This paper holds that no matter what kind of judgment path,the scope of damages for breach of an appointment contract should be the performance interests of the appointment contract.Whether the remedy for breach of contract can be applied to compulsory performance.Under the judgment path of "appointment-negotiation",the court does not support compulsory performance,and the loss of the observant party is compensated by damages.Under the judgment path of "appointment-fulfillment",if there is no situation that the performance is unable or meaningless,the court will generally support the way of compulsory performance to remedy the creditor's loss.The fourth part mainly includes:Suggestions on improving the appointment contract in China.Based on the provisions of the current law on precontract,this paper analyzes and discusses the precontract,points out its defects,and puts forward relevant legislative suggestions.That is to say,it is necessary to make clear the establishment requirements,the legal effect and the responsibility of violating the contract.Through the four-part argumentation,explore the legal effect of the appointment contract and the path of remedy for breach of contract in judicial practice,protect the parties to the contract,and improve transaction security.