Preliminary Exploration Of Void Contract

The system of void contract is one of the important problems both in the judicial practice and in the contract law's theory. Focusing on the center of the void contract, this paper compares different legislations with other countries and regions. And by rational analysis, the paper takes deep exploration in the concept, identification and result of void contract, and clearly draws a line between some issues related. Its aim is to improve the void contract system and meet the need of china's market economy's development.This paper consists of three parts: the introduction, the body and the conclusion, and the body is divided into four chapters.The introduction makes clear the classification of the contract, and points out the theme of the article. It points out that the general contract should be divided into three categories: First, effective contract; Second, the contract which effect is not entirely or the contract with flawed effect, including the voidable contract, the effect-pending contracts and the relatively void contract, which belongs to the void contract in the modern division; Third, the null or void contract, which only contains the absolutely void contract. This paper just discusses the concept , the identification and the handling of void contract by this standard of division. Chapter I begins from the contract. From the perspective of legal act, void contract is defined as those contracts which, though in existence, doesn't possess the sanction and can not come into effect because of being lack of necessary conditions, which could not consequently have no force and effect. From the nature of void contract, it belongs to the general contract. The designed goal of the system of void contract is not to expand the scope of the void contract. on the contrary, its goal is to identify the circumstance of the void contract and to narrow the scope of the void contract as far as possible. This is just the same values of freedom of contract and lease agreement. And also, the author discusses the relations between the void contract and the unlawful contract, the relatively void contract, the voidable contract and the effect-pending contracts etc.In Chapter II, on the basis of making detailed comparison and analysis on judgment criterion in the Civil Law countries and Common Law countries and the deep analysis on the judgment criterion of absolutely void contract in our country, the author point out that the existing standard in our country still has some defects in logic and clarity. And then the author puts forward his own opinions. In handling the void contract, the article advocates the right to void the contract and the authorities confirmed a clear avoidance of the contract. The article also believes that the nullification of the void contract is absolutely null, and because of its violation of the public interest. The country's intervention of the void contract should be emphasized, and therefore the time constraint should not have effect on the advocate or identification of the invalidation of the void contract.In Chapter III, the invalidity of void contract just means that the legal effect client expecting will not occur, but it not means that no legal effect occurs. After the void contract is confirmed, restitution obligations will occur between the parties, which forms are returning property or discount compensation, and compensation for the damage. In the occasions that the malicious collusion damaging the national interests, the anti-civil law legal remedies, nationalization, will be applied, Despite the time limitations should not apply to confirming the void contract, after the void contract is declared to be invalid, the right to seek damages or the return from each other will be brought forth between the parties. And the time limitation should apply to the right of the request.In the Fourth Chapter, two questions are added in the article: the part- nullification contract and malicious defense. For part- nullification contract, if the law has words, we can identify some invalidation of part directly in accordance with the provisions. Without clear stipulates in the law, to identify that should meet certain requirements. As to malicious defense, the article said, malicious defense's proposal of the null and void contract should be supported, but some corresponding measures should be taken to punish malicious defense and to maintain social justice.The conclusion summarizes the article and sorts up the whole structure.