Research On Liability For Breach Of Reservation Contrac

With the development of social economy,in order to meet the changeable market demand,civil subjects are more and more using flexible ways to obtain transaction opportunities to ensure the realization of transaction interests,so the appointment contract arises at the historic moment.However,the great uncertainty of whether the contract can be signed after the appointment contract is concluded leads to frequent disputes in judicial practice.The complex judicial practice and transaction need to be restrained by law urgently,but the successive laws and regulations adopted vague and evasive attitude in the legislation,resulting in the contention of various theories in the theoretical circle,and the differences in the judicial practice court’s judgment path are great.The article is divided into four parts.The first part systematically summarizes the current legislative status of liability for breach of contract of appointment in China,and researches a large number of typical cases in judicial practice.The second part mainly clarifies the dispute about the validity of appointment contract in academic circles.As the core of the appointment contract system,the author analyzes and compares the current four major dispute theories,clarifies the viewpoints,reasons,advantages and disadvantages of each theory,and thinks that content determination theory should be adopted.The third part systematically analyzes the theoretical disputes on the imputation principle,form and mode of liability for breach of contract.In the fourth part,the author puts forward some suggestions to improve the appointment contract system based on the analysis of the first three parts.This paper aims to answer the key problems that need to be solved,such as the identification of appointment contract,validity and the way to assume the liability for breach of contract,and puts forward suggestions for legislative improvement.First of all,in the confirmation of reservation contract,the enumerated provisions such as "subscription letter,order letter and reservation letter" should be deleted in the legal provisions to avoid the parties to confuse the correct use of reservation contract.It can be defined in essence.Secondly,in the identification of validity,the content decision theory should be adopted to classify the validity of the contract.The validity of the contract can be divided into negotiation type and definite type appointment contract according to the completeness of the contract content,the inner meaning of the parties and the distance from the conclusion of the contract.Thirdly,based on the classification of effectiveness,the form of liability for breach of contract and the way of liability for breach of contract are discussed respectively,and the binding form of negotiation appointment contract should be clarified,including non-performance of bona fide negotiation and improper performance of appointment contract obligations;The default forms of definite appointment mainly include non-conclusion of this contract and improper performance of appointment contract obligations.Whether compulsory performance can be applied and the scope of damages.A negotiated appointment contract cannot be subject to compulsory performance,and the compensation is subject to trust interest as the upper limit.A definite appointment contract can be subject to compulsory performance,and the scope of damages is subject to performance interest as the upper limit.