The Empirical Study On Binding Effects Of The Preliminary Contract And The Remedy For Breach Of Contract

With the development of the economy,there are more and more applications for appointment contracts in practice.At present,China's "Contract Law" does not have relevant provisions on the appointment contract system.In 2012,the Supreme People's Court promulgated the "Interpretation of the Applicable Law on the Trial of Cases Concerning the Trial of Sale and Purchase Contracts"(hereinafter referred to as "Judicial Interpretation of Sale Contracts").However,the legal validity of the contract in the appointment and the application of compulsory performance,the scope of compensation for damage,etc.,require further theoretical discussion and legislative and judicial clarity.Based on the combing of the bulletin case and the classic case,this paper analyzes the difference between the trial ideas of the validity of the “acquisition”contract and the different ideas of the breach of contract in the same effect identification,and combines the validity of the “accounting” and the law of breach of contract.On the basis of exploring the conflicts between trials,trial practice and theory among different courts,we find a way to solve the problem of “appointment”effectiveness determination and breach of contract relief,so that the trial standards can be unified.This article is divided into four chapters.The first chapter focuses on the status of judicial practice of “reservation” disputes to ask questions.The first section analyzes the differences in the trial ideas for the validity of the appointment contract;this paper divides the trial ideas of the court to determine the validity of the appointment into two types: “reservation – honest negotiation” and “reservation –conclusion of the contract”.The second section analyzes the differences in the negotiation ideas of the contractual breach of contract;specifically,the different courts have differentty in the determination of the nature of the liability for breach of contract,the determination of whether the appointment can be enforced,the scope of damages for breach of contract and the treatment of the deposit.Thus,the problem that the courts are not uniform in the same situation is found.The second chapter aims to explore the way out for the validity of the appointment contract.The first section clarifies the arguments for the different appointment effectiveness doctrines,and sorts out the “necessary consultations”,“should be contracted”,“content decision” and “considered this covenant”.In the second section,on the basis of combing the doctrine,the author proposes that the validity of the appointment contract should be subjective and objective.On the subjective level,the parties should give priority to the appointment validity,and at the objective level,the party's true intention should be presumed through the content of the appointment contract,such as review.Whether the "reservation" has the necessary provisions of the contract and whether the parties have agreed to negotiate the terms.The third chapter aims to explore the solution to the disputes over the contractual breach of contract.The first section proposes that the nature of the liability for breach of contract should be unified;the breach of the appointment should bear the liability for breach of contract rather than the liability for negligence,and the liability for breach of contract is independent,and it cannot be confused with the liability for negligence in contracting.The difference between the two is obvious..The second section proposes that the application of compulsory performance should be determined;there is a dispute between the affirmative and the negative in the compulsory performance of the appointment,and whether the appointment can be enforced depends on the situation.First,it is necessary to judge the effectiveness of the contract according to the content of the contract.If the appointment has the effect of "should be contracted",it can be enforced.If the appointment has the effect of "necessary negotiation," the observant can only claim damages instead of forcibly concluding the contract.The third section proposes that the scope of compensation for damages should be standardized;regarding the scope of the claim damage compensation theory,there is a dispute between the reliance interest statement and the performance interest statement.The author believes that the damage compensation for breach of contract should be the performance of the reservation.The scope of thedamage compensation should include but not Limited to loss of opportunity.For an appointment contract with the effect of “necessary consultation”,the performance loss of the contract is the loss of the fee paid for the contract and the opportunity for the contract.An appointment party with the effect of “should be contracted” may claim damages for breach of contract with reference to the performance of the contract,but shall be limited to the performance of the contract.Section IV proposes that the deposit rules in the appointment should be correctly applied;the deposit has a maximum limit,generally not exceeding 20% ??of the amount of the contract,and there is an exception to the application of the penalty in Article 115 of the Judicial Interpretation of the Guarantee Law.The fourth chapter discusses the appointment system reflection on legal admissibility.The first section combs the historical disputes about reservation tolerance.The second section the author puts forward China's legal construction of appointment system necessity of reflection,including theories of precontract legal admissibility of reflection and exploring whether it is feasible in practice.This paper intends to analyze the legal effect of the appointment contract and the solution to the liability for breach of contract through combing and analyzing various concepts,in order to clarify the trial ideas and the referee standards for the validity of the appointment contract and the breach of contract in judicial practice.