Research On Compulsory Contracting Liability Of Reservation Contract From The Perspective Of Civil Code

With the emergence of a large number of judicial practices,the appointment contract has been stipulated in the provisions by the legislators.However,when one party fails to perform the obligations of concluding the contract,the current legislation only provides that the liability for breach of contract can be requested,and there is no direct provision on whether the appointment contract can be forced to conclude.It is precisely because of the gap in legislation that scholars and judges in the theoretical circle disagree and cannot determine the unified standard.Starting from the problems existing in legislation and judicial practice of appointment contract in China,this paper analyzes whether appointment contract can be forcibly concluded by referring to extra-territorial theories and judicial thinking and using a variety of research methods,and provides referable judicial suggestions for improving the validity system of appointment contract.This paper is divided into four parts:The first chapter introduces the background of the topic,makes clear the value of the topic,and puts forward the problems to be studied.This paper makes a comparative analysis of the literature review at home and abroad,introduces the main research methods of this paper,and lays a foundation for the writing of the following paper.The second chapter mainly analyzes the judicial judgment of compulsory contracting liability of reservation contract.Through comparative analysis of typical cases,gazette cases and local cases,this paper explains the problems and trial paths of compulsory contracting liability of appointment contract in judicial practice,and summarizes and analyzes the basic ideas suitable for the determination of appointment validity.The third chapter mainly introduces three theories related to the validity of reservation contract,namely,the theory of contract,the theory of good faith consultation and the theory of content differentiation,and introduces the provisions of comparative law and Anglo-American law on the validity of reservation,and makes a comparative analysis of them,so as to find a trial mode suitable for China’s judicial judgment.The fourth chapter is to perfect the judicial suggestion of compulsory contracting responsibility of appointment contract.Firstly,the validity of the appointment contract should follow the autonomy of the parties’ will.On this basis,according to the distinction,simple appointment takes the effect of good faith consultation,standard,complete appointment takes the effect of compulsory contracting.Finally,summarize some cases that cannot be forced to conclude the contract,such as the case of failure to perform,the absence of the main clause and the case of the open contract has clear provisions on the liability for breach of contract.In general,this paper takes the basic concept definition,validity determination and whether compulsory contracting can be applied as the main line of writing,uses literature research and case study methods to discuss the liability of compulsory contracting of appointment contract,and puts forward my own opinions on the trial thinking that courts should follow in determining validity of appointment contract in practice.