|Keywords||Contracting negligence pre-contractual obligation honest principle reliance protection compensation scope|
The traditional theory in relation to the contract law insists on the principle of "no contract no liability", resulting that at the stage of the conclusion of the contract, if the other party has damages due to the contacting negligence activities of one party, such other party has no access to legal relief. Until in 1861, German jurist R. V. Jhering issued the article "Contracting Negligence:Compensation for the Damages in the Event of the Invalid or Void Contract" which makes systematic study and analysis on this issue and properly deals with the protection issue of the parties during the stage of the conclusion of the contract. The theory of contracting negligence liability has great impact on the legislation and prejudication in various countries. The Chinese scholars have started the research on the system of contracting negligence liability in 1990s. The research mainly focuses on the contracting negligence liability’s conception, legal nature, liability type, compensation scope, etc. However, there exists big differences of opinion in the academe on the issues discussed above, so-called "a hundred schools of thought contend".This thesis, on the basis of various research methods, such as comparison, demonstration and analysis, historical analysis, conducts the comparison and analysis research on the issues related to contracting negligence liability system, such as the conception, constitution, type, legal nature, applicable rules and compensation scope. This thesis consists of five chapters.Chapter One mainly discusses on the basic theory related to contracting negligence liability, including contracting negligence liability’s conception, constitution and type.There are different views on the conception of contracting negligence liability among the scholars. The contracting negligence liability can also be applied in the case of the existence of a valid contract. Therefore, its conception can be defined that, during the process of the conclusion of the contract, one party breaches the pre-contractual obligation occurred from the honest principle resulting in the damages of the other party, such party shall take the liability for compensation, regardless that such contract is finally concluded or valid. There are also various opinions on the constitution of contracting negligence liability in the academe. The common theory of four component parts conforms more to the general characteristics of contracting negligence liability, i.e., one party breaches the pre-contractual obligation established by honest principle, this has caused the damages to the reliable interests of the other party, there exists consequence relationship between the contracting negligence activities and the damages, and one party has faults.With respect to the types of contracting negligence liability, at present there are two general classification methods:one method is to divide according to the final status of the prospected contracting, and the other method is to divide according to the pre-contractual obligation established by honest principle. Identifying the liability type based on the pre-contractual obligation can depart contracting negligence liability from the validity issue of the contract, which makes the liability type more clear. According to the classification method based on the pre-contractual obligation, contracting negligence liability can be divided into three types, i. e., breach of transaction or dealing safety obligation, breach of explanation obligation, and breach of continuing negotiation obligation.Chapter Two mainly discusses the jurisprudence foundation of contracting negligence liability. The jurisprudence foundation of contracting negligence liability shall include two parts, honest principle and reliability protection principle.Chapter Three mainly discusses on the legal nature of contracting negligence liability. The contracting negligence liability mainly protects the reliance interests. It does not equal to the personal interests or property interests protected by the infringement law, or the contractual interests protected by the contract law. Therefore it is an independent statutory liability.Chapter Four mainly discusses about the legal validity of contracting negligence liability, including the issues related to the compensation rules, compensation scope, compensation method and burden of proof.There are four basic rules related to the compensation rules of contracting negligence liability, i.e., fair principle, foreseeable damages principle, fault off-set principle, and profit and loss off-set principle.The compensation scope of contracting negligence liability includes the reliance and inherent interests as well. Moreover, the compensation scope for inherent interests would not exceed performance interests.The compensation method related to contracting negligence liability includes two types, the return of the property and the compensation for the loss.With respect to the share of the burden of the proof in relation to contracting negligence, it shall consider the actual situation of the case in whole, capability for the burden of the proof of the parties, distance of the evidence, and other factors. With the consideration of these factors, it would then be good to the share of the liability, on purpose of making balance of the rights and obligation of the contractual parties.Chapter Five mainly discusses on the existing problems in the legislation of the current contracting negligence liability in China and the relevant legislation proposals. The current contracting negligence liability system in China has some problems, for example, the legislation system is not reasonable, the provisions is too simple and general, the liability rules are obscure, the compensation scope is not clear, and it is not practical. The author suggests that contracting negligence liability should be included in the future civil law system and listed independently in the section of Debt Volume, instead of being expressed as the provisions in the contract law. In addition, the detailed system of contracting negligence system should be established properly, for example, liability type, compensation rules, compensation scope, burden of proof should be regulated expressly in the legislation.