The Study On The Remedy For Breach Of Pre-contract

From the point of view of judicial practice,the civil liability of the pre-contract can be divided into three parts: the identification of pre-contract,effect of pre-contract and remedy for breach of pre-contract,the first two parts of which constitute the basis of remedy for breach of pre-contract,determining whether the parties are bound by the contractual obligations and what kind of remedy the contracting party can obtain.Article 2 of the Interpretations of the Supreme People's Court on Issues relating to the Application of Law in Hearing Cases Involving Disputes over Contracts of Sales has established the concept of "pre-contract",which is to agree to conclude the official contract within a certain period of time in the future.To determine whether a contract is a pre-contract or a contract is the premise and core of studying remedy for breach of pre-contract.Generally in determining whether the contract is a pre-contract or a contract,in addition to considering the title of the agreement called by both parties,the intention of setting up a specific legal relationship and the content of the contract should also be considered.It is even necessary to explore as much as possible whether the parties have the true meaning of the covenant subjectively.The validity of pre-contracts is dominated by two theories which are "must be negotiated " and "must be concluded",but the two theories are presenting a more opposing relationship."The argument between "must be negotiated " and "must be concluded" reflects whether to recognize the continuation of the performance applicable to the remedy for breach of pre-contract in the liability for breach of contract – the theory of "must be negotiated" with a greater emphasis on the process of consultation and exchange of opinions,whose ideological ensence is coincide with the denial of the pre-contract applying to compulsory performance(continuation of performance),which does not take the conclusion of the contract as the ultimate purpose;while the continuation of performance,as one of the manners of liability for breach of contract is in fact an expression and derivation of the effect of "must be concluded" in the pre-contract,with greater emphasis on the outcome of concluding the contract."Deciding on the content " is a compromise combining the above-mentioned theories,which advocates that the validity of pre-contract cannot be generalized but according to the completeness of the content of the pre-contract to determine the validity of the pre-contract,but how to set the boundaries to distinguish the categories should be further discussed and detailed in the future.The dispute over the remedy for breach of pre-contract mainly revolves around two issues: one is whether it can be applicable to compulsory performance and the other is how to define the scope of damages.On the issue of compulsory performance,the majority of scholars holding a negative view considering that the compulsory performance of the pre-contract is a case of non-application of compulsory performance under Article 110 of the Contract Law,and that the pre-contract would only produce the effect of consultation,if compulsory performance would be contrary to the principle of autonomy in the meaning of the Contract Law.The scholars holding a positive view believe that since the appointment contract is an independent contract,the provisions of contract law should be applied,and there are no obstacles to the non-compulsory performance.The fact that the two parties have voluntarily concluded the pre-contract reflects the "freedom of contract",which means that the compulsory conclusion of the contract does not violate the principle of autonomy of the parties to the contract law,but can also reduce the moral hazard caused by the abuse of the pre-contract.On the definition of damages,the theoretical community has different views,some scholars believe that although the pre-contract as an independent contract,but it self-responsibility to conclude the contract,the performance of the pre-contract is still logically in the process of concluding the contract,so the liability for breach of contract can be compared to the contract liability for contract negligence,which is,to bear the liability of the contracting party's trust loss,some scholars think that the standard of contract compensation for appointment should be limited to the performance of the loss of interests,because the scope of compensation of the interests of trust should be limited to the performance of the interests.There is also a dispute over whether the opportunity interest should be compensated.The damages is inherently logically implicated with the aforementioned issue of compulsory performance and cannot be discussed in isolation from the previous issue of compulsory contracting.Therefore,the author refers to the above-mentioned "deciding on content " and compulsory performance of the "difference",in the case of damages still want to build a flexible identification model,which is,according to the different content of the pre-contract for simple pre-contract,typical pre-contract and complete pre-contract.Different types of pre-contracts are used in different ways of breach of contract liability and different scopes of damages are determined.The Bulletin of the Supreme People's Court has published five "bulletin" cases concerning pre-contract disputes,including three cases before the Judicial Interpretation of the Sale Contract was launched.These typical cases in the appointment contract can be enforced and damages of the referee's point of view is not completely consistent.At the same time,the author searched cases on the "China Judgement Online" and "Itslaw" with the related keywords and collected the court decisions of different levels of the court for integration and analysis,trying to summarize the judge's tendentious view of the problem in practice,from the results there is a more obvious "one-sided" situation and the legal regulation of the precontract has a certain reference effect.As a written law country,China lacks clear provisions in the relevant laws for appointment contracts.Although the judicial interpretation of the sale contract mentioned and recognized for the first time the appointment contract and its related means of breach of contract relief,completed the initial exploration and definition of the appointment contract and its liability for breach of contract,but the Judicial Interpretation of the Contract of Sale and Sale only makes a purely principled provision,only generally limiting the scope to "breach liability" and "damages".Since the norms of liability for contract of appointment are too general,there is no clear scope of application and use of the liability for breach of contract,and the manner in which the liability for breach of contract is not specified in the Contract Law,such a legislative gap has led to a lack of necessary legal basis for judges in practice to resolve disputes over liability for contract breach of contract.It is difficult to make accurate judgments about them through existing legal norms.The relevant contract law system should be perfected,which is conducive to avoiding the situation of "different judgment in same case" arising from such economic disputes,obtaining the theoretical and institutional basis for the reasonable interests of the parties,increasing the opportunity of market transactions while reducing transaction risks,ensuring social stability and promoting social harmony.