The Discussion On The Effect Of The Compromise Agreements

With the development of the society and the increase of the legal consciousness of the people, the existence of the civil law disputes even presents a trend of rising. There are two methods to settle the disputes.One is the pleasing solution and the other is litigation. The compromise system is the core part of the pleasing solution. In practice, it has shown significant advantages for the contract parties to make the compromise agreements at their own will to settle the disputes, without violating the related laws. Therefore more and more legal professions from various nations are focusing on it.There is large gap between the legislation and research on the compromise agreements of China and that done by professions from overseas. The legislation for the compromise agreements in German, France, Japan and Taiwan of China is comparatively perfect. Meanwhile, their theoretical research is also rich and experienced. The Contract Law and the Litigation Procedures of the civil law have not involved any concept, ingredient, legal effect etc of the compromise agreements and are not able to regulate the compromise agreements in practice. The professionals of mainland China have contributed little legal research on it and there is not a systematic paper and thesis up to present. People are not aware of the compromise contracts virtually. The complete compromise system shall include the compromise agreements made during the litigation procedures and by the substantial law. Currently, there are serious problems for the two types of compromise agreements in China. The one is the inability of executing the litigation compromise agreements and the other is the compromise agreements signed out of the litigation having no binding force in law. This article will view from the above issues, focus on the effect of the compromise agreements and think the following contents about the compromise agreements respectively.The article includes three chapters in addition to the preface and the conclusive part.Chapter 1 is the brief introduction to the compromise agreements. This part discusses about three issues: the importance of the compromise system, the nature of compromise agreements, and the establishment and requirements of an effective compromise agreement. In reference to the compromise agreements, the author focuses on two aspects. Firstly, she demonstrates the superior effect of the compromise agreements in setting such disputes, through the comparison of the two ways setting the disputes. Secondly, the author considers the present situation of legislation and research, and points out the position of the compromise agreements in the whole legal system. As to the nature of the compromise agreements, through the comparison of three kinds of different theories, the author thinks it is necessary that the compromise agreements can only be reached between the parties who create legal rights and obligations, but its contents shall be decided and classified according to the types of dealings. As the establishment and requirements for the effectiveness of compromise agreements, this article based on the legal relationship and the virtue characters of setting the disputes, points out the particular requirements for the establishment and forming the compromise agreements.Chapter 2 is the statement about the effect force of the compromise agreements. This part is divided into two aspects. The first aspect is the confirming effect about compromise agreements. Once the compromise agreements are established, they will have the confirming effect whereas the contract parities are not permitted to claim the legal relation before the compromise and the court cannot support the claims contrary to the compromise. In addition, the article gives more details from the aspects of the content, foundation and opposition. The author concludes that the reason for the compromise agreements to have the confirming effect is that they are accepted and agreed by the parties at their own will. The second aspect of this chapter is the certified effect and creative effect. The effect of the compromise is to confirm the original legal relation continuously, so that it has the effect of confirming. It has the effect of establishment when there is a new legal relation. This is not only the issue of theoretic dispute but also the issue affecting the settlement of time effect, secondary right, refuting and anti-reality. The author agrees with the certain effect of compromise by tidying the research result of the scholars, but holds a different opinion about the effect of establishing and the effect of confirming. The distinguishing standard is diversified. The author inherits and absorbs the distinguishing standard and thinks that it shall identify the effect of confirming and the effect of establishing and solve the related problems according to the concrete content of compromise agreements and their amendments.Chapter 3 discusses about the failure of setting effective compromise agreements. The article discusses the circumstances, legal results and handling measures of the failure of setting effective compromise agreements, from the aspects of invalidity, revocation and dissolution. To the author's opinion, when the compromise agreements turn invalid, revoked and rescinded, all such situation may face the problem of recovering the original status, namely to recover the status before making the compromise agreements. The compromise agreements are made for settling the original disputes, therefore the invalidity, and revocation and dissolution of the compromise agreements shall not exterminate the original legal relations of the parties.The rights and obligations of the parties shall remain effective. If the implemented part of the compromise agreements exactly reflects the obligations of the original legal relation, then the compromise agreements cannot be dealt with according to the general rule for contracts. So we shall take into account the cost of implementation.Chapter 4 introduces a special type of the compromise agreements, namely the litigation compromise agreements. Generally speaking, the compromise agreements in litigation have no legal binding force.So people have not good will to fulfill it voluntarily. In view of this, the author advises that the compromise agreements shall have equal legal force to the agreements made in court and the jury decisions. And such compromise agreements shall be implemented by force.All in all, the author concludes that key weakness of the compromise agreement system in China is resulted from the lack of the binding force in law. The complete compromise system shall include two aspects, namely, the substantive law and procedural law. The substantive law shall recognize and approve that the compromise agreements signed out of litigation shall have legal effect to confirm the legal relation and shall deal with the problems according to the system of change and amendment of the obligations, such as the defense, the affection of limitation and so on. Under some conditions, the procedural law shall recognize the compromise agreements signed in litigation and award it the same legal effect as the judgments. At the same time, the concept, essential requirements and legal effect of the compromise shall be classified and regulated in the general civil code and the civil procedure act.