Research On Ineffective Contract

The theory of ineffective contract comes from the difference between the institution of contract and the effectiveness of contract, but in theory it's lack of in-depth study, it already has theoretical and practical sides of horizon. In judicial practice, due to the lack of legal provisions and theoretical support, we are difficult in identifying and protecting ineffective contract. This paper attempts to study the ineffective contract, on one hand, provides theoretical support for the theory study, on the other hand, expects to play a role of studying of ineffective contract.Except preface and conclusion, the thesis contains four parts:In the first part, the author the author mainly has a brief discussion on the concept and nature of the ineffective contract. The first one is the clarification of the concept of the ineffective contracts. The ineffective contract has instituted, it is possible of be effective. The theory of ineffective contract comes from the difference between the institution of contract and the effectiveness of contract. Because of difference of the institution of contract and the effectiveness of contract, especially the difference in time and validity, it leads to the coming of concept of the ineffective contract. The ineffective contract is a contract during that time, from the contract being instituted and effective. The contracts being effective and having not instituted are not ineffective contracts. The second one expounds how the ineffective contract comes from through making an explanation of relationship of the institution of contract and the effectiveness of contract. The arrangement and the regulations controlling when the contract is effective will be effective not only because of contract institution but only because of contract being ineffective. In the true, the ineffective contract is a contract not making the purpose of contract come true, it doesn't bear a contract making the purpose of contract come true. As far as the contract's character is concerned, the obligation of preparing for contract is effective when the ineffective contract institutes. The parties must fulfill the obligation according to arrangement and the principle of honest and credibility.In the second part, the author introduces the three patterns of ineffective contract. It is a temporary estimate of contract state, is a real state in the history of contract, but it isn't a stage must through, It exits in some contracts. According to the contract law, ineffective contract contains some patterns as follow: the first one is a contract that must be registered and approved. If a contract is not registered and approved, it is a ineffective contract. There are six types of these contracts according to the contract law and administrative law. The contract attached going into effect conditional is one. When the condition is failed, the contract is a ineffective contract. Under this circumstance, the contract going into effect depends on if the condition that the contract arranges achieve, so some factors out of contract makes the contract flexibility, such as motivation and prepare of contract, it is satisfied with the party's requires. Another type is contract attached time limit. We also call it contract attached started time. The contract is a ineffective contract before the time.In the third part, the author expounds the validity of ineffective contract, has make clear that the force of contract is multiple echelons. The contract with full force is a contract not only be instituted, but also be effective. The force has three echelons. The first one is the parties can not modify and rescind the contract. The second is the parties must fulfill the arranged and legal obligations, such as waiting, help, register and approve. The third one is the parties must fulfill the concrete obligations. The first one and the second one are called common force. The third one is called special force, the obligation in this echelon is a special obligation of a special contract. The contract instituted but not be effective has common force, the contract instituted and be effective has full force and special force. The author expounds the validity of ineffective contract in the system of validity comparing with null and void contract, revocable contract, contract whose validity is uncertain and effective contract. Go into effect and having an effect are values of validity, they are different. The ineffective contract emphasizes the aspect of the validity's time, other contracts emphasizes the aspect of the question of determining the nature, those leads to the ineffective contract special.In the fourth part, the author expounds the obligation and liability of the ineffective contract. First, the author compares the obligation of contract before instituted with the obligation of preparing for contract, makes clear that the obligation of ineffective contract is the obligation of contract before instituted. The obligation of contract before instituted comes from the principle of honest and credibility, it is legal obligation. The obligation of the ineffective contract not comes from regulation, but from arrangement, it is different with the obligation of contract before instituted. So it is not proper to make the obligation of the ineffective contract being obligation of contract before instituted. When we make the obligation of the ineffective contract being he obligation of preparing for contract, it can resolve the problem above. Now there are two viewpoints about the liability of the ineffective contract. The first one is the theory of liability for wrongs in conclusion of contracts. The theory believes that liability for wrongs in conclusion of contracts is to refer to one kind of responsibility that the parties don't perform the obligation of contract. The parties fulfill obligation when the contract is effective. If the contract is ineffective, the parties have right to not fulfill obligation. It is liability for wrongs in conclusion of contracts not liability for breach of contracts. The second one is the theory of liability for breach of contracts. The theory believes that breach obligation of the ineffective contract is liability for breach of contracts. The parties breach the obligation though the contract has instituted but not be effective. The standard judging liability for wrongs in conclusion of contracts and liability for breach of contracts is whether the contract is instituted. Only when the parties breach of contract, they undertake responsibility. Through expounding the two viewpoints, we make clear that the liability of ineffective contract is liability for wrongs in validity.