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On the Contracting Fault Liability

Author: HanWenJun
Tutor: LiJianHua
School: Jilin University
Course: Legal
Keywords: Contracting fault liability Principle of good faith Reliance interest protection
CLC: D923.6
Type: Master's thesis
Year: 2009
Downloads: 297
Quote: 0
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Abstract


As a legal concept, the contracting fault liability can be found in the Contract Law of China, and has been legal basis for judge in practice. But, generally speaking, there are still some problems. Therefore, in theory and in practice, it is necessary to improve the legislation. In this passage, from the beginning of the emergence and development of contracting fault liability, analyze the theoretical basis of contracting fault liability, then discusses the essentials and the scope of application of contracting fault liability. To proceed a comprehensive system of contracting fault liability and systematic elaboration.The thesis consists of four parts.The first part introduces the emergence and development of contracting fault liability, then discusses the theoretical basis of contracting fault liability. First of all, the introduction of the origin from Roman law, the concept of contracting fault liability was first proposed by Jhering, a famous scientist of law from Germany, since then it has greatly influenced legislation and judicial precedent of various countries. Then introduces the theoretical basis of contracting fault liability is principle of good faith. We can look for and hold the nature of the principle of good faith in the contract law from native and foreign country scholars’s discussions. Formed by three respects mainly. First, from the psychological meaning of the morals, principle of good faith is determined by certain comprehensive social terms of society. For example, good will, sincere and fair and reasonable general morals psychology. Second, at the meaning, principle of good faith takes one regard morals as centre but has law force from legal norm. It is concerned personal and legal conscientious approval of code of conduct of standardization. It is a psychology request from object to subject. Third, at the aspect of practice, principle of good faith is all the behaves of concerned person and administration of justice. There are three reasons for why the principle of good faith is the theoretical basis of contracting fault liability. Firstly, the principle of good faith is a basic principle of Civil Law. As a basic rule, the principle is an important factor to the academic development of the Civil Law and Commercial Law. It is the basement and termination of many theories, especially in the field of Contract Law. The function of the principle is fully exhibited. Secondly, the reliance interest is the interest which the party takes a reasonable cost performance pay based on reliance, available through the other payments cover (back) interest. The aim of the protection of reliance interest protection is as same as the nature of the principle of good faith. Thirdly, the principle of good faith has three major characteristics, supplementary and uncertainty and balance. It is one of the most remarkable characteristics of civil law to be supplementary. The principle of good faith is an abstract additional regulation. Uncertainty (elastic clause) regulate insufficient function of remedying specifically but speech to their law. Making the limited legal clause to play to the heaviest utility. Balance gives the judge the power, according to fair principle of justice, according to concrete special circumstances of case, to use the laws flexible.The second part discusses the essentials and the scope of application of contracting fault liability. Through reviewing the different viewpoints about the concept of contracting fault liability held by numerous scholars, generalizes the concept of contracting fault liability as a kind of liability of compensation for damage which cause trust interest loss to someone else, which should be borne by the litigant because of violation of obligation as per bona fide doctrine, during a contract signing. Contracting fault liability should consist of four essentials as following-first, violation of precontract obligation. The precontract obligation, also called bona fide obligation by some, refer to the subsequent obligation as per bona fide doctrine, borne by the litigant during contract signing. The conduct violating precontract obligation is named conduct of contract fault, which is generally omission and sometimes commission. The conduct violating precontract obligation occurs during contract signing, i.e. the entering stage of contract. Secondly, one violating the precontract obligation is wrong, referring the existence of fault in contract, including subjective fault and objective fault. The fault in contract refers that the conduct of the does violates the obligation as per bona fide doctrine and damages the contract relations. Thirdly, it causes trust interest loss to someone else. Trust interest refers to the interest of one party generated based on the reasonable trust in the other party who will enter a contract. The trust interest loss refers that one party’s conduct of contract fault makes contract untenable and invalid, causing the expenses paid by the trusting party and other loss uncompensated. Fourthly, there are causal relations between the conduct violating precontract obligation and the trust interest loss. The conduct violating precontract obligation, i.e. the conduct of contract fault is the reason of trust interest loss; and trust interest loss is the result of conduct of contract fault. .According to the related regulations of Contract Law of our country, contracting fault liability can be classified into three types.The third part discusses the legal consequences of contracting fault liability, and make clear that the legal basis for the legal consequences of contracting fault liability is reliance interest protection, discuss the applicable area of the system of damage’s compensation for reliance interest protection. The scope and principle of compensation for reliance interest protection is wide, the structure of reliance interest protection includes transaction cost and chance interest, but not includes performance interest.The last part, make the principle of good faith perfect system construction needed. Though our country has defined the principle of good faith in legislating, the concrete explanation is not very overall. The type of classification is not so scientific, therefore it causes some confusion to the theoretic field and to the judicial practice. The thesis elaborated other important issues relating to contracting fault liability, for example, the improvement of China’s legislation with respect to contracting fault liability and pointed out the issues that should be paid more attention in judicial practice.

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CLC: > Political, legal > Legal > Chinese law > China and France > Contract Law
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