The Doctrine of Precontractual Liability Under Chinese Law: A Comparative Outlook

Abstract

The doctrine of precontractual liability was transplanted from the European civil law systems into Chinese contract law in 1999. Since then, it has gradually evolved into one with Chinese characteristics with the judicial interpretations of the Supreme People’s Court and numerous court decisions on precontractual liability. Although the doctrine of precontractual liability has been in use in China for almost two decades, little effort has been made to answer the following questions: What are the scope, nature and functions of the doctrine of precontractual liability? What remedies for precontractual liability are awarded to the aggrieved party? To what extent does it differ from its European counterparts after which it was modelled? This article aims to answer these questions through doctrinal and comparative analysis. It first delineates the doctrine of precontractual liability as stipulated in Chinese contract law and clarifies the distinction between precontractual liability and liability for breach of pre-contract. It then categorizes court decisions on precontractual liability into five categories in order to gain a better understanding of the scope of the doctrine in judicial practice and also investigates judicial approaches to the remedies for precontractual liability. This article further discusses the nature and functions of the Chinese doctrine of precontractual liability within the law of obligations.