The Judicial Process In The Null And Void Contract

Civil and commercial contract disputes is the largest source of private law cases, and thus how to judge and identify the effectiveness of the contract, and how to deal with the contract null and void are the necessary judicial proceedings in civil and commercial contract disputes. As China's legal environment is relatively weak, not setting up the proper judicial authority of the courts and judges in society and political system, some judicial skills and the concept of the rule of law are far from mature so the processing appears arbitrary and non-professional in the contract null and void on the judicial process when in front of a variety of complicated conflicts of interest, which seriously affected the judicial authority. Based on the the relevant judicial practice and theory in the contract null and void, this paper aims to establish a relatively uniform standards of void the contract of national commercial justice (including the contract null and void judgments, recognition and treatment) to help in civil and commercial contract administration of justice. I attempt to achieve the aim by demonstrating the following aspects: the judicial confirmation method, the standard of the judicial confirmation of contract null and void, the judicial selection after the recognition of contract null and void, judicial treatment of contract null and void, and my reflection on the improvement of judicial handling system. The following paper is divided into seven parts:The first part is the introduction. The author describes the reason why to study the subject, the dominant ideology thesis and research methods.The second part is the first chapter, the theory part of this paper. First, I'll defines the scope of the paper through a few basic concepts. Second, I'll demonstrate the system of the contract null and void itself is a necessity in this process by discussing the dialectical relationship among the system and freedom, equality, security, efficiency. Third, the correct operation of contract null and void should be achieved by virtue of the correct operation of the judicial legitimacy. The judicial process in null and void contract refers to the people's court, according to civil proceedings, confirms the ineffective contract and makes the arrangements by the client's request. It is different from the quasi-judicial process - arbitration, but also different from the judicial handling - reconciliation and civil mediation.The third part is the second chapter, that is "the methods of judicial confirmation in the invalid contract." Only after determining the contract is invalid, null and void, can we handle the consequences under applicable legislation in terms of the consequences of avoidance of the contract arrangements. Therefore, when the judge to adjudicate the case of a contract, the first challenge is to judge the validity of the contract. So, what is the method of avoidance of the contract the judge employs on this occasion? This chapter focuses on four methods to identify the null and void contract, they are the identification from the facts of the case method, the method found in the law, applicable law and peremptory norms of method.The fourth part, the third chapter is about "the standard of judicial confirmation in null and void contract." To determine the contract null and void, we need both methods as well as the standards. In this chapter, I summarize the principled standard (ie, public order and good), normative standards (ie, mandatory legal requirements) and complementary standards as the judicial standards judges can employ to determine the contract null and void.The fifth part, the fourth chapter, illustrates "the judicial choices after the confirmation of the invalid contract." After the contract is confirmed as invalid, how can a judge handle the judicial process in an appropriate way? This chapter demonstrates the proper handling of the operation of the program from both aspects of the return of property and the compensation of damages.The sixth part is the fifth chapter, which is about "the prescription for judicial handling of the null and void contract." Judicial handling of the invalid contract involves the prescription for the following two questions: First, whether the confirmation of the null and void contract is applicable to the prescription limitation; second, how to make the client's request of returning the property and the compensation for the loss applicable prescription limitations. As for the first question, the author proposes his view to distinguish between relatively ineffective and absolutely null: the absolute invalidity of the contract confirmation is free from the prescription limitations while the relative of the invalid contract confirmation is under the prescription limitations. The second question is that we should also distinguish between the nature of the claim: Claims the right to request the nature of the statute of limitations applies, and claims the right to property do not apply.The sixth chapter, the last part, is my reflection on the improvement of the system in handling the null and void contract. China's courts have already made some progress in the judicial process in the contract null and void, but there are still many problems: the conflicts between the law and jurisprudence, between judicial interpretation and law, between the lower court's decisions, and also between the different judges in the same court. The contradictions and conflicts, not only in the identification of the contract invalid, but also in handling the contract null and void. Based on the analysis of the current situation, I set out to propose improvements by the value orientation of liberal values and efficiency: first, the principle of proportionality is established as the core method to identify the contract null and void; second, establish and improve guidance system in cases involving the null and void contract.