A Study Of Compulsory Contracting System

The law system of compulsory contracting has aroused much discussion since its inception.Some people think that compulsory contracting has brought a huge impact on the theory of freedom of contract,while others believe that compulsory contracting conforms to the true meaning of civil law and is an inevitable requirement for social development.China's law does not make general provisions on mandatory contracting obligations,and relevant provisions are scattered in various laws and regulations.There are major disputes in the theoretical field about the scope,application,and civil liability of compulsory contracting.Judicial practice also contradicts the theory.In view of this,on the basis of the theory of contract freedom and contract justice,this article takes the obligation of compulsory contract as the research object,explores the related issues of compulsory contracting from multiple levels,and puts forward its own views.In addition to the introduction and conclusion,this article is divided into three parts.The basic content of each part is as follows:The first part explores the basic theories of the law system of compulsory contracting.First,this article introduces two arguments about the concept of compulsory contracting obligations: in the narrow sense,it states that compulsory contracting is a compulsory commitment;in the broad sense,it states that compulsory contracting is also the due meaning of compulsory contracting obligations.After completing such an introduction,this article demonstrates the shortcomings of the narrow theory,analyzes the reasons for adopting the broad theory,and gives a definition of the obligation to contract.Secondly,this article analyzes compulsory contracting obligations and confusing format contracts,order contracts,appointments,etc.Third,after clarifying the concept,this article sorts out the theoretical basis of the obligation of compulsory contracting.The first is the theory of freedom of contract.On the surface,compulsory contracting obligations limit the parties' freedom to enter into a contract and the freedom to choose the other party.This is almost impossible to achieve in practice.This article argues that relying on contract freedom alone will not only achieve true freedom,but will restrict freedom.The compulsory contracting obligation reflects the essence and value of contract freedom,and defends the contract freedom.The second is the theory of substantive justice.Substantive justice focuses not only on individual freedom,but also on the balance of the overall interests of society.It protects the freedom and fairness of the weak to enter into contracts,and the obligation to enforce contract is in line with the connotation of substantive justice.In addition,this article further combs the characteristics and types of compulsory contracting obligations.The second part focuses on the scope of application of the law system of compulsory contracting.First of all,this article points out the disputes in the theoretical field about the scope of application: Strictly restricting the view that its scope of application should be based on the explicit provisions of the law,and scholars who say that the scope of application is broad should emphasize that the scope of application should be expanded.Both doctrines believe that companies that provide basic public services,the medical field,and compulsory insurance should apply compulsory contractual obligations.The biggest dispute is reflected in the right of first refusal.In view of this,in the second section,the author conducted a theoretical and empirical analysis on the applicability of the preemptive right.As the "Company Law" Judicial Interpretation(4)"stipulates that shareholders have the" right to regret ",there is no room for compulsory contracting obligations in the shareholder's priority purchase right.This article analyzes and demonstrates the common right of first refusal.From a theoretical point of view,the nature of the right of first refusal should be recognized as the right of formation,and the corresponding legal effect can be achieved only by expressing it unilaterally,so compulsory contracting does not apply.Different from the theory,in practice,most courts recognize the right of first refusal as the right of claim,but there are also differences in whether to apply the compulsory contracting obligation.This article believes that this is caused by the ruling basis and not based on the compulsory contracting obligation itself.Therefore,this article believes that the right of first refusal should not be included in the scope of application of compulsory contracting obligations.In addition,this article considers that the obligations of employers in labor contracts and Article 65 of the Securities Law are not applicable to compulsory contracting.The third part is to discuss what kind of civil liability should be assumed when breaching the obligation of compulsory contracting.This part revolves around the theory of negligence in contracting,the theory of liability for breach of contract,the theory of independent liability,and the theory of liability for tort.This article discusses the rationality and deficiencies of various theories,and proposes the rationality of the tort liability theory.The specific ways of bearing liability include compulsory contracting,apology,compensation for damages,etc.This article believes that when the conditions are met,mental damage can also be included in the scope of damages compensation.