The Confirmation Of The Invalid Contract And Limitation

The confirmation of the invalid contract is a familiar issue in the legal practice. There is no explicit rule provided in the Chinese Contract Law whether the limitation of actions should be applied to the confirmation of the invalid contract. At the same time, there is no unanimous view among the theorists whether the limitation of actions should be applied to the confirmation of the invalid contracts. Thus the phenomenon of different judges made the diametrically opposed judges for the similar cases appeared n the judicial practice. In order to solve the issue and make some useful recommendations for the further improve and perfect the relative legislations of the invalid contract in our country, the paper studied the relationship between the confirmation of the invalid contract and the applying of limitation of actions systematically by the methods of combining the substantive law and the procedural law and integrating the theoretical deduction with the system regulation. The main conclusions are as follows:Chapter one:The argument on theories of whether the limitation of actions should be applied to the confirmation of the invalid contract. First, the chapter describes several different understanding of Legislative and judicial practice on this issue. Through the study of foreign legislation and specific practices of judicial practice, Been such a conclusion, the judicial practice of China don't have the same way on this problem. After that, the paper summarized three major views among theorists on whether the limitation of actions should be applied to the confirmation of the invalid contract in the abasement of collection and analysis of the theories of schools on the issue among the theorists. The first view is the limitation of actions should be applied to the confirmation of the invalid contract. The contracts couldn't be affirmed invalid if the limitation period of actions is over. The second view is the limitation of actions should not be applied to the confirmation of the invalid contract. As the object of the limitation of actions is the"claim", the most important characteristic of which is the claim should be satisfied by the obligor to perform the specific behavior of the payment. Neither the right of accusing for the court to affirm the invalid contract nor the affirming the invalid contract of the court actively have the fundamental character of the "claim". According to those, he limitation of actions should not be applied to the confirmation of the invalid contract. The third view is whether the limitation of actions should be applied to the confirmation of the invalid contract can be determined by the different kinds of invalid contracts, namely, the absolutely invalid contract and the relatively invalid contract. For the absolutely invalid contract, the limitation of actions should be applied to the confirmation. Furthermore, the confirmation of the absolutely invalid contract should not be limited by any times. For the relatively invalid contract, the limitation of actions should be applied to the confirmation of the invalid contract. Supreme Court's latest view is that the limitation of actions shouldn't be applied to the confirmation of the invalid contract, However, in order to solve the problem in practice, Will be the starting point of limitation of objective standardized. Finally, the paper analysis the theoretical disadvantages for the limitation of actions be applied to the confirmation of the invalid contract and then point out that the limitation of actions should be applied to the confirmation of the invalid contract under the current legal framework covering laws and regulations in our country.Chapter two:Theoretical deduction of the view that the limitation of actions should be applied to the confirmation of the invalid contract. The view that the limitation of actions should be applied to the confirmation of the invalid contract is deduced theoretically by the theories of origin of the validity of contracts, the object of the limitation of actions and the realization of the law's justice value in this chapter. Value of law is a pluralistic, multi-dimensional, multi-level system. In modern times, the values of the law are justice, order and efficiency. legal value have Conflict and associated. The issue on whether the limitation of actions should be applied to the confirmation of the invalid Reflects the conflict. Limitation of action is to resolve the conflict of invalid contract confirmed. First, the limitation set a certain period for the confirmation of the contract, In the period, the Justice dominant, Right people can assert their rights get Legal protection, If Beyond the statutory period, At this point, the right to claim their rights were not for the protection of the law, law focuses on maintaining a new social order. Second, the invalid contract as belonging to the object of Limitation. Because the identification of invalid contract is actually a special kind of relief right. At present, the frequency of malicious defense, the new order need to be maintained. It is necessary to confirm the invalid contract as a special right to the relief.Chapter three:The system regulation of the limitation of actions should be applied to the confirmation of the invalid contract. Based on the current situation of the judicial practice in our country, the issue that the limitation of actions should be applied to the confirmation of the invalid contract in the Chinese practice of the Contract Law is managed and some suggestions are put forward on the further improvement of legislation of the Chinese Contract Law, which is expected to offer a reference for solving the issue on whether the limitation of actions should be applied to the confirmation of the invalid contract and improving the legislation of contract law. The view is the limitation of actions should be applied to the confirmation of the invalid contract can be determined by the different kinds of invalid contracts, namely, the absolutely invalid contract and the relatively invalid contract. For absolutely void contract, the contract parties and third party outside of the contract can be filed to the court, Court, arbitration body can take the initiative to review the validity of the contract. The case with a significant impact on the community or damage Over statute of limitations, Confirmed by the High Court to decide whether the contract is not valid. Relatively ineffective for the contract, only the third person made a particular application, there is no specific third person to tell, no other person shall make application for recognition, Meanwhile, the court or arbitration body can not take the initiative to review the validity of the contract. During the proceedings on the contract null and void, This paper argues that the provisions of the limitation period of 5 years is sufficient to protect the rights of indigenous people and the public interest.The issue on whether the limitation of actions should be applied to the confirmation of the invalid contract, which shares two characteristics of the substantive and procedural laws, is not only a basic question in the invalid contract theory, but also goes hand in hand with the trial of the invalid contracts in the judicial practice. Thus, it is onerous to study the issue that the limitation of actions should not be applied to the confirmation of the invalid contract. The paper is based on the existing study on whether the limitation of actions should be applied to the confirmation of the invalid contract, there are still many problems should be studied. The paper-tried to set up the scholar's acoustical resonances on the issue of whether the limitation of actions should be applied to the confirmation of the invalid contract and deepen the study of the issue. On the basis, the paper tried to offer some suggestions that are put forward on the further improvement of legislation of the Chinese Contract Law and offer a reference for solving the issue on whether the limitation of actions should be applied to the confirmation of the invalid contract.