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Study On Judicial Handling Of Invalid Contract

Posted on:2011-02-28Degree:MasterType:Thesis
Country:ChinaCandidate:L FangFull Text:PDF
GTID:2166360305456904Subject:Law
Abstract/Summary:PDF Full Text Request
The invalid contract is an important system in our contract law. As China's economy development and the improving of the market, the invalid contract has become increasingly frequent occurrence in our economic activities. However, because of our country's law involves little concerns on invalid contract, and exist a lot of controversies in the theorists, which give our administration of justice so many difficulties. In this paper, through the Anchored Empirical Legal Research methods, the honest attitude and the methods of comparative law, I make a comprehensive research on the invalid contract; include the review of judicial practice, the use of the litigation limitation, the Legal consequences, etc.The introduction gives a brief introduction to the study of the invalid contract theory and the confusion of the invalid contract in the judicial practice.The first part, gives an introduction to the Judicial Review of invalid contract. The correct understanding of China's judicial review of the invalid contract is invalid and accurately grasping the invalid contract identification in judicial practice, are the primary prerequisites to resolve all the issues related to the invalid contract in judicial proceedings. The Review is divided into three parts and describes the review of the dominant invalid contract, the review of the implicit of the invalid contract and the proceedings. The Review of the contract validity is the legal authority the law gives to the court.The review of the dominant invalid contract is relatively easy. Generally speaking, according to China's "contract law," the 52nd article, the five situations of the Invalid Contract can resolve it. However, in the case of the law does not provide, how to apply the "law without an express prohibition is legal"is an important issue to the review of effectiveness which concerns to the implicit contracts. Meanwhile, this section will have an in-depth discussion to the fact that whether the courts of second instance are active to review the validity of the contract and corrected it when the court of first instance finds that the effect of contracts error in judicial proceedings.The second part is to introduce the application of judicature in invalid contract prescriptions. The issue that whether the Invalid contract should be applied to the limitation, there exist many debates among the theorists and there is also the same confusion in judicial practice on this issue. There are no specific provisions in the existing law, and courts have no uniform standard in such cases, even the similar cases appear different judgments. The unity of justice is to establish the basic requirements of judicial authority. Determining whether the invalid contract be applied to the Limitation should be clear at the judicial level.The chapter includes two parts. It's about invalid contract's litigation limitation. First, the court confirms if the invalid contract have application on litigation limitation. The author's opinions are that although the invalid contract is the agreement between parties, but the contract is invalid, because it is unlawful and unmoral.In nature it's not the true contract. So there is not the litigation limitation in invalid contract. Second, after analyzing the return of property, or damages because of the contract's invalid. The author's opinion is that there is the difference between two kinds of consequences. When appearing those two kinds of consequences, we should confirm the litigation limitation, according the characters of return of property or damages separately. The author lists the cases of Supreme People's Court. This part will study the Limitation of the Invalid Contract with regard to the theoretical shortcomings and the system defect and have a better understanding of the Litigation Limitation. And I hope this will be helpful of solving the same problems in judicial practice.The third part introduces the legal consequences of invalid contract and the judicial issue. The understanding and dealing of the legal consequences in judicial practice would be conducive to the business activities and the economic development. Otherwise, if we couldn't solve those problems which are caused by invalid contract in Chinese judicial practices, and it will cause the economic disorder. People will lose their business confidence. There will be barriers restraining the development of economy.In judicial practices, the invalid contract will produce some legal consequences. For these legal consequences, there are three kinds of problems that we should pay attention to. In clue of the legal consequences of three invalid contract, the author will discuss some related problems in judicial practices. Some problems serious undermine the law's promotion to economic development, such as the limitation to return to properties, the coverage of Damage, liability forms of recovered property. The chapter bases on the experiences of judicial practices, and on the ground of the realities of Chinese judicial environment, analysis those problems that we should pay attention to, those problems are from the invalid contract's legal consequences. Its aim is to help solving those problems.Chapter four mainly introduces other judicial problems which are related with invalid contract. Because there are few definite clauses on invalid contract in China, there are different opinions in theorists, and there are diversities in judicial practices too.The chapter analysis some typical problems in judicial practices, such as the problem of unlawful motives, part of the void, apparent agency of the invalid contract. The author gives his individual opinions and advice on how to cope with those problems. Its aim is to help to solve some problems of the invalid contract.By analyzing those problems, the author's aim is to study some problems in invalid contract, and perfect the legal system of the invalid contract.
Keywords/Search Tags:Invalid Contract, Litigation Limitation, Legal consequences, Judicial handling
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