Dissertation
Dissertation > Political, legal > Legal > UNIVERSITY > China and France

Culpa System

Author HanDaoYou
Tutor YuanMinShu
School Anhui University
Course Legal
Keywords Contract-conclusion negligence Trusting protection Damage compensation
CLC D913
Type Master's thesis
Year 2005
Downloads 141
Quotes 1
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Since established, the theory of "contract-conclusion negligence" has provided the basis for remedying the other party due to one party’s negligence at the contract-conclusion stage ,thus compensating for the insufficiency of traditional contract and infringement laws in the point of offering thorough relief to the victims .As a result, it has quite an important meaning to the following aspects: the effective and comprehensive protection of the legal interests of the parties involved, guarantee of trade security, the safeguard of the honesty-and-credit principle as well as the maintenance of the market economy order.Strictly speaking, contract-violation negligence liability is neither contract-violation liability nor right-infringement liability, but an independent system of creditor’s rights. It is one of the factors contributing to the emergence of debt, thus is the proof to be relied on by the parties involved to form requisite rights.The legal foundation of contract-conclusion negligence liability is the honest-and-credit principle. In essence, contract-conclusion negligence liability is the embodiment of the honest-and-credit principle in the course of concluding a contract. Its component is that the parties involved have the action of violating the pre-contract duties, which are contract-attached duties of mutually compliance with credit legally shouldered by both parties, because of contract-conclusion. The contract-violation party has fault, including the actions purposefully and accidentally. Errors or contract-conclusion are errors emerge in violation of the pre-contract duties, not the ones, just as some scholars think, only confined within those leading to invalidity and cancellation. Damages to the opposite side and to contract-conclusion usually means damages to the interests of fulfillment. There exists cause-and-effect relationship between pre-contract-duty violation and the damages. Damages are caused by the wrong actions in contract-conclusion.The components, theoretical basis, applicable sphere as well as damages compensation concerning the contract-conclusion negligence liability. Furthermore,on the basis of all these points above, it combs out the theoretical problems about contract-conclusion negligence liability, analyses the insufficiency of current legislation on this system, proposes advice for improving legislative work, and thus is conclusive to establishing rational civil liability system in our country. In view of the motives of improving the civil liability system in our country, this thesis inquires into several theoretical questions concerning contract-conclusion negligence liability. As for the structure, apart from the introduction and conclusion, this thesis consists of four parts.Part Ⅰ Introduction of the emergence and development of the contract-conclusion negligence liability system. In this part, historical origins of this system in Roman Laws, its formal advance and influences on legislation in many countries are discussed in this part.Part Ⅱ Basic theoretical questions concerning contract-conclusion negligence liability are mainly discussed. First further discussions are made on the concept of contract-conclusion negligence liability. Second, on the premise of recognition of the honest-and-credit principle as theoretical basis, the trust that protection should be done towards the parties involved is proposed to be the system’s direction theoretical basis. Third, practical detailed dissection and analysis are done on the historical background of contract-conclusion negligence liability. Fourth, components of contract-conclusion negligence liability are mainly discussed. In particular discussions on pre-contract duties specify the principle of honesty and credit and conduces to being more operational in appliance. At last, the applicable spheres of contract-conclusion negligence liability are mainly discussed. In this part, possible liability types that may be met in practice are quite comprehensively discussed. Meanwhile, in combination with the" Contract Law "in our country, the author’s views on the applications of different types are specified.Part Ⅲ Damage compensation of contract-conclusion negligence liability is mainly discussed in this part. First, discussions on the compensation target of trusting interests damage liability in concluding a contract are made. Second, analyses on theconcept, components, and special characters of "trusting interests" are carried out. At last, discussions on damage compensation of trusting interests damage liability are also made.PartⅣ Legislative proposals on improving the contract-conclusion negligence liability system are put forward. Through discussions on the stipulations and insufficiency in our country, suggestions on legislative improvement are put forward to promote legislation concerning this system in our country.At last, in view of the special character that the contract-conclusion negligence liability system develops continuously with the cases and theory, the thinking pattern of discussing problems with the view of development is acted on throughout this thesis. Through the mastery over the essence of the development of the system, more rational and accurate discussions are carried out on the contract-conclusion negligence liability system.

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