Dialectic Analysis Of The Scope Of Compensation For Culpa In Contrahendo

China's current law has not clearly stipulated the scope of damages for the fault of contracting faults.There are many kinds of doctrines in the academic circles,and judicial practice is not unified.But whether it is doctrine or practice,the view of compensation basically revolves around the connotation of reliance interest—the traditional doctrine is trying to make uniform provisions for the scope of damages for liability for negligence.However,from the current situation of doctrine and practice,the way of explaining the concept of relying on the interests of interest has not been successful.The usual practice of dealing with damages in the contract area is to choose between reliance on loss of interest and loss of performance,and as a clear distinction between liability for breach of contract and liability for breach of contract.And based on the inertia of thinking,the scope of damages for breach of contract liability should be less than the liability for breach of contract,and the reliance interest should be limited to the performance of benefits.But the actual compensation problem is more complicated than this "dichotomy".In the case of contractual faults,the conclusion of the contract is a dynamic process in which the parties enter into close proximity to the contract through unfair negotiations with unfamiliar strangers.The scope of the agreement has also expanded from the simple clause to the necessary clause,even the entire content of the contract.The degree of trust will increase and the degree ofprotection should be improved,which is reflected in the expansion of compensation.In other words,the scope of damages for contracting faults should be a spectrum that changes with the progress of the contracting process and the degree of trust.From small to large,it is compatible with the specific facts in the contracting process,rather than being constant for a certain type of interest.Nor should it be limited by the benefits of fulfillment.In addition,the liability for contracting negligence in violation of the protection obligation,although competing with the tort liability,cannot therefore exclude the relief path for the liability for negligence.The two remedies have their own advantages and disadvantages and should be handed over to the victim.In the contractually effective contracting fault liability,although the victim suffers from economic disadvantages,it is difficult to fall into the category of traditional reliance interests,but the justification of applying such responsibility cannot be denied.Because no matter what kind of responsibility,the purpose of damages is to fill the reasonable damage of the victim.The responsibility for contracting faults is no exception.Therefore,we should adhere to the principle of seeking truth from facts and determine the amount of compensation based on the size of reasonable damage.As for what kind of interests are damaged,it is the evaluation of the object of compensation after the damages are completed.If the type of interest is used as a restriction in advance,there will be a situation in which the purpose of filling is lost.Therefore,the scope of damages for contracting faults should follow the principle of the general damages law,and compensate the victims for damages and lost interests in accordance with the faults,behaviors,damages,and causality.At the same time,in the breach of liability for breach of protection obligations,the liability for negligence through contracting has its superiority,especially for the pure economic loss in the inherent interest,which is better than the protection path of the tort liability;Although the economic disadvantage of the victim is difficult to fall into the category of traditional reliance interests,it cannot be denied the legitimacy of its protection.The scope of damages for contracting negligence liability is removed from the concept of reliance interest.To a certain extent,it is to soften the boundary of compensation,which may damage the certainty of the law.Therefore,it is necessary to establish a certain compensation standard or a system for consideration.To improve the standardization and operability of practice.First of all,based on the particularity of the performance of the compensation in the case of contracting faults,to prevent confusion with the liability for breach of contract,it is necessary to specifically propose the necessary conditions for the performance of compensation for the failure of the contract.Then it puts forward special considerations for damages in general contracting faults: distinguishing the standard of damage and the proof of loss,the balance of proof and the difficulty of proof;selecting appropriate reference for the benefit and applying the profit and loss to offset,and preventing duplicate compensation;Determine appropriate “crystallization” time and impairment obligation for damages;use foreseeable rules to eliminate unforeseen damage;consider the degree of fault of both parties in the amount of responsibility,allocate responsibility reasonably;consider the reasonable cost of the victim's actual cost,balance risk and income.