Key words : Formation of contract; Offer and acceptance; Culpa in contrahendo; Chinese contract law; Comparative of contract law.; 주제어 : 계약 성립; 중국 계약법; 계약체결상의 과실책임; 청약과 승낙; 비교계약법
영남법학, no.30, pp.113 - 140
Although the korean civil law only provides 9 articles on the formation of contract, the chinese contract law stipulates intimately the formation of contract by 35 legal provisions.
There are three main types of the formation of contract in korean civil law, which are contract by offer and acceptance, contract by the fulfil of intention and crossed offer ; however, the chinese contract law regulates not only the contract by the offer and acceptance, but also the electronic contract and the contract by the standard provision. The difference between those two countries is that the chinese contract law merely is expressly stipulated the regulations on the contract by the fulfil of intention and crossed offer in the substantive enactment.
The crucial contents of the formation of contract under the chinese contract law are as follows.
1. It is require to acquire the capacities of rights and performances,when the people are having a contract (article 9).
2. It is announced that people are freely enter the contract by anyway(article 10).
3. It suggests the concrete substances of written contracts(article 12).
4. They regulates all the details of the contract by offer and acceptance(article 13 - article 31).
5. The period of the formation of contract and the place of the formation of contract (article 32 - article 37).
6. The contract by the standard provision (article 39 - article 41).
7. The electronic contract(article 11, article 16-2, article 26).
8. Culpa in contrahendo(article 42).
9. It also regulates the duty for the protection of secret, when people find out during the contract process. (article 43).
Furthermore, when China choose for the actual period of the effectuation of offer and acceptance, they obey the principle of arrival system.
Therefore, the proper period of the establishment of contract should be the period when the effect of permission is occurred.
China also provides the regulation on the culpa in contrahendo under their contract law; which are quite different from the korean civil law. China set the compensation ranges as the damage of the reliance interests; it occurs after people violated the good-faith duty, which is required at the process of the conclusion of contract.