A Legal Study On Liability For Breach Of The Preliminary Agreements

Today,the market economy developing with alarming rapidity,the transaction forms have become more flexible and diversified.In the traditional mode,contracts can not meet the purposes of fixed transactions between the two parties.In order to get the greater opportunities for both parties to the transaction,preliminary agreements at this time emerge.But for a long time,Chinese legal system does not have the relevant provisions of pre-contract.Until 2012,the Supreme People's Court issued interpretation that the precontract was officially recognized at the legal level for the first time.However,in the current legal system,the appointment system still has a great gap in legislation,between the Supreme Court published different cases also sometimes conflict,and the academic points can not be unified.In practice,it is resulted that local courts at all levels do not have laws and regulations as clear guidelines.This thesis takes liability for breach of the preliminary agreements as the research direction,hoping to explore a trial path suitable for our judicial practice.The thesis is divided into four parts.The first part is the case analysis,first of all,author studies the preliminary agreements classic cases and analyzes that the courts in judicial practice have different ways to determine the preliminary agreements.The trial route of the courts is divided into three ways: "regard as the contracts ","negotiating " and " performance".Secondly,through the analysis of the judgment reasons in the classic cases,it is found that in practice,there are differences in the court's treatment of the scope of damages for continuing performance and breach of contract,it leads to the phenomenon that many similar cases are judged differently from the same case.The second part is the confirmation standard of the legal effect of the precontract.First of all,this paper sorts out the four theories: "regard as this agreement"," negotiating in good faith","continuing to performance" and "based on the content".By analyzing the merits and demerits of these theories,author raises "the combination of subjectivity and objectivity" is more rational.On the subjective level,judges should be based on the true meaning between the parties.At the objective level,the real intention of the parties should be inferred from the content of the appointment.The third part,what is the applicable condition that the preliminary agreements should be applied to continue to performance? By studying and referencing the preliminary agreements of the representative countries abroad,this thesis puts forward a suitable mode for Chinese judicial practice.In theory,the preliminary agreements whether apply continuing to performance have been controversial.It mainly includes "positive" and "negative" and "content distinction" of the three theories.According to the difference of the validity of the preliminary agreements,judges apply selectivity continuing to performance.If the appointments have the validity of negotiating,they are not applicable to continue to performance;if the appointment have the validity of conclusion,they are applicable to continue to performance;if the validity of the appointments are not clear,they are applicable to continue performance in different situations.The fourth part,the thesis analyzes the constitutive conditions of compensation for damages in other countries.Then author proposes that the liability of compensation for damages of preliminary agreements should be clearly defined.This thesis firstly expounds the controversy between the theory of " the reliance interests " and " the expectation interests".The point of the thesis,the scope of the liability of compensation for damages can not be generalized.Judges should be based on the specific content of preliminary agreements.If the appointments have the validity of negotiating,they should be limited to the reliance interests;If the appointments have the validity of negotiating,they shall be limited to the expectation interests;if the validity of the appointments are not clear,the scope of the liability of compensation for damages shall be determined that the appointments whether contain the main provisions.