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Research On The Liability For Breach Of Appointment Contract

Posted on:2022-01-19Degree:MasterType:Thesis
Country:ChinaCandidate:S L ZhengFull Text:PDF
GTID:2506306521478584Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
In order to meet the need to consolidate the uncertain trading opportunities in the development of the market economy,the appointment contract has been widely used due to its unique advantages in the negotiation stage.However,the insufficient and complete appointment system has also exposed deficiencies in the contract application process.Many questions have been raised.Although Article495 of the Civil Code of the People's Republic of China confirms the legal status of an appointment contract,its own theoretical disputes have not been completely resolved.Based on this,this article starts from the appointment contract and related issues,researches and explores the liability for breach of appointment,in order to provide new ideas for the proper handling of disputes caused by appointment in judicial practice,practice the civil code to regulate the form of transactions,and protect the security of transactions.The spirit of legislation.In addition to the abstract and conclusion,this article is divided into four parts.The first part is "the appointment contract and its validity determination".As a general contract,an appointment contract also meets its basic components.After combing the views of the scientific community,comparing this agreement,conditional contracts,subscription letters and letters of intent,etc.,appointment contracts have the characteristics of preparation,independence,and content certainty,which constitute Its unique advantages.The difference between an appointment and this agreement is the preparatory nature of the appointment.Compared with this agreement with complete content,the appointment has terms to be discussed and left to be negotiated at the performance stage for the purpose of signing this agreement.The difference between an appointment and a conditional contract lies in its independence.Its subject matter is the act of contracting and exists independently of this agreement.The difference from the agreement documents such as the subscription letter and the letter of intent lies in the certainty of its content.Secondly,based on the theory of the validity of appointments,the types of appointment contracts are classified.According to the completeness of the content,they are divided into simple appointments,typical appointments and complete appointments.Among them,simple appointments and typical appointments are deemed to be negotiated and complete.The appointment should be made to provide a theoretical basis for the subsequent analysis of the responsibility for breach of contract.The second part is "Investigation of Referee Cases in Violation of Appointment".Integrating the relevant cases of appointment contracts after the judicial interpretation(2)of the sales contract was promulgated and before the Civil Code came into effect,it was found that the main problems in judicial practice related to disputes related to appointment contracts were high appeal rate,no uniform standard for validity determination,and liability for breach of contract.The relevant judgment deviates from the mainstream thought in the theoretical circle.Secondly,it focuses on the analysis of the Supreme People's Court bulletin cases and typical cases promulgated.In practice,there are usually three legal consequences for breaching an appointment: treat it as this agreement and bear the liability for breach of this agreement;it is determined that the terms of the appointment are complete and can continue to be performed;the appointment cannot be performed but the appointment cannot be performed.The breaching party shall be liable for damages.The discussion of trial thinking and legal consequences provides the basis of judicial practice for the subsequent analysis of the responsibility for breach of contract.The third part is "Determination of Liability for Breach of Appointment".Recognizing that the liability for breach of an appointment needs to meet the general constitutional requirements of liability for breach of contract,which is different from liability for negligence in concluding a contract.The liability for breach of contract occurs after the appointment contract is established and becomes effective.In principle,the liability for breach of this contract should not be included.The forms of breach of appointment contract include breach of contract caused by refusal to perform contract obligations,breach of contract caused by malicious negotiation,and breach of contract caused by improper performance of contract obligations.Based on the principle of double-track liability for breach of contract,the principle of fault and the principle of no-fault should be combined to apply for breach of contract.Specifically,the principle of fault is applied to simple appointments and typical appointments,and the principle of no-fault applies to complete appointments.Finally,it is determined that in addition to the agreed exemption,when the breach of the appointment meets the statutory force majeure and circumstance change constitutive requirements,the appointment can be exempted or reduced.The fourth part is "Assumption of Liability for Breach of an Appointment".Appointment conforms to the composition of a general contract,so it is applicable to the breach of a general contract,including compulsory performance,compensation for damages,deposit liability and other modes of undertaking.According to the different types of appointment contracts classified in the previous article,the main issues are the application of mandatory performance in appointment and the scope of damage compensation in appointment breach.For compulsory performance in violation of appointments,simple appointments cannot be applied,and typical appointments shall not be applicable unless there is a special agreement,and compulsory performance shall be applied to complete appointments;the scope of damages for violation of appointments shall be defined,simple appointments and typical appointments should be trusted The loss of interest is the benchmark,and the typical appointment can rely on the loss of interest and the performance of the loss of interest to accurately determine the scope of compensation;the deposit in the appointment has the dual nature of a contract and a breach of contract,and the amount of the contract stipulated in the contract shall not exceed 30% of the upper limit of the subject matter.Finally,due to the different theoretical basis of the applicable contract,the expected state of the contract is also completely opposite.Compulsory performance and other liabilities such as damages and deposits cannot be borne concurrently,and damages and deposit responsibilities can be borne concurrently.In order to meet the needs of market development,our country can be applied to the liability for breach of contract based on compensation for damages.The boundary of compensation for breach of contract is defined in judicial practice to promote the improvement of our country's appointment system.
Keywords/Search Tags:appointment contract, liability for breach of contract, compulsory performance, compensation for damage
PDF Full Text Request
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