Research On Reserved Contract

With the development of market economy,the trading activities among market subjects become more and more frequent and complex.People are eager to get more trading opportunities,but in a short period of time it is difficult to make a detailed agreement on the terms of the contract or do not have the trading conditions for the time being.So far,there are more and more cases of disputes over appointment contracts,which are not regulated by the current laws of our country,and the judicial interpretation provisions are not clear,causing a lot of judicial disputes.Therefore,in order to standardize the judicial practice and better guide people to use the appointment contract,it is particularly important to study the legal issues related to the appointment contract.In addition to the introduction and conclusion,this paper mainly includes four parts.The first part mainly discusses the general problems of appointment contract.First of all,it defines the contract of appointment from its meaning and characteristics.An appointment contract is a kind of contract that stipulates to conclude this contract within a certain period in the future.Its main characteristics are agreement,duration,certainty and binding.Secondly,it distinguishes the precontract from the relevant legal concepts,and differentiates the precontract from the contract,the contract with conditions and time limit,so as to show that the precontract has its independent institutional value.Finally,it analyzes the theoretical basis of the existence of the advance contract from two aspects: the principle of freedom of contract and the principle of autonomy of will.In the second part,the general theory of precontract is further elaborated from the aspects of the establishment and effectiveness of precontract.This paper analyzes the elements of the establishment of an appointment contract from the aspects of expression of will,determination of content and formal elements.There are four theories about the confirmation of the legal effect of an appointment contract in the theoretical circle.Through the evaluation of the mainstream view and the analysis of the judicial practice,the author believes that the theory of "should be contracted" is reasonable,which gives the observant party the right to request for compulsory contracting,not only to avoid the situation that the negotiation is easyto perform and the cost of breach of contract is low,which makes the appointment become a mere formality The purpose of the contract is consistent.The third part is the remedy for breach of contract.The reservation contract is also a kind of contract.In the case of its effective establishment,the breach of the reservation contract must bear the liability for breach of contract.Through the identification of the principle of liability for breach of appointment contract and the distinction between the liability for breach of contract and the liability for fault in contract,this paper once again illustrates the independent value of the appointment contract system.There are many controversies in the theoretical circle on the way of bearing the liability for breach of contract,which mainly focus on the applicability of continuing performance and the scope of damages.The author,through the analysis of the existing judicial cases,combined with the contractual nature of the legal effect of the advance contract,determines the rationality of the application of continuing performance;through the carding of the theoretical views on the scope of damages and the judicial trial practice According to the analysis of the specific point of view in,the theory of reliance interest should be applied to the scope of damage compensation,so the opportunity loss should be compensated and the scope of compensation should be clarified.The fourth part is the problems and improvement of the appointment contract system.This paper discusses the problems existing in the contract of appointment in the current law,and puts forward corresponding suggestions for improvement.Before the promulgation of the civil code of the people's Republic of China,the main problems in the system of appointment contract in China are that there is no systematic legislation,and the provisions of judicial interpretation are not clear.In view of the problems,the author puts forward corresponding suggestions: linking up the application of the existing judicial interpretation,expand the scope of application of precontract,and improving the legal provisions of the appointment contract system.