On Formal Contract

As the restriction on the freedom of contract, legal formal contract reflects the relationship of dialectical unity between contract form and contents. How should formal coercion be in more harmony with contract freedom? How legislators and other related legal professionals grasp this scale so as to ensure the maximization of the contract value? These issues deserve profound discussions.This paper bases on two cases to analyze issues related to contract and bases on the two cases to conduct deep analysis of Article 36 of The Contract Law of the People's Republic of China. The legal discussion focuses on the correspondence between formal purpose and formal coercion to analyze the legitimacy of formal contract, arguing that the formal purposes of different contracts shall be distinguished. To be specific, we shall judge if the formal purpose is to preserve the interests of the party concerned or preserve the interests of the third party and the public. If the formal purpose is to preserve the interests of the party concerned, the law shall not render more restrictions for the sake of parental care. Instead, the law shall recognize the contract as initiative norm. In this case, the lack of formal form is in general recognized as not affecting the validity of the contract. If the formal purpose is to preserve the interests of the third party and the public, the law shall recognize the contract as the peremptory norm, and the contract shall be recognized as invalidity in case of any violation to the legal form.This paper analyzes two cases lacking conventional form and legal form; focuses on the purpose sources of the formal coercion of formal contract; renders a specific analysis of the range of the legal formal coercion of contract and the validity of the contract with the lack of form; and finally offers several suggestions about building and improving China effectiveness evaluation system with the lack of formal contract form.This paper consists of three chapters. In Chapter 1, the author introduces the two cases of air conditioning purchase dispute and Li Yanli suing real estate company, states their respective main points of the two cases and their respective verdicts of court, points out the focuses of the two disputes and the basic problems reflected, and then analyzes the evidence and reasons of the verdicts of court. In Chapter 2, on the basis of the two cases, the author proposes the issue to be solved in this paper—the validity of .formal contract lacking form; further introduces the concept and nature of formal contract; analyzes the four functions of formal contract and the relationship between the purpose sources and legitimacy of formal coercion; compares the application range of the formal contracts in some countries and points out the difficulties encountered by formal contract and its reasonable range; and bases on a variety of domestic and foreign legal doctrines to compare relevant foreign legal theories with three domestic theories to evaluate the valid of formal contract lacking form. In Chapter 3, the author bases on the above analyses to propose her opinion and view about the issues reflected in the two cases so as to solve similar issues in real life.