The Theoretical Speculation On The Limitation Of Actions Do Not Applied To The Affirmation Of Invalid Contracts

The affirmation of the invalid contract is a familiar issue in the legal practice. There is no explicit rule provided in the Chinese Contract Law whether the limitation of actions should be applied to the affirmation of the invalid contract. At the same time, there is no unanimous view among the theorists whether the limitation of actions should be applied to the affirmation of the invalid contracts. Thus the phenomenon of different judges made the diametrically opposed judges for the similar cases appeared in the judicial practice. In order to solve the issue and make some useful recommendations for the further improve and perfect the relative legislations of the invalid contract in our country, the paper studied the relationship between the affirmation of the invalid contract and the applying of limitation of actions systematically by the methods of combining the substantive law and the procedural law and integrating the theoretical deduction with the system regulation. The main conclusions are as follows:Chapter one: The argument on theories of whether the limitation of actions should be applied to the affirmation of the invalid contract and some comments. In this chapter, the paper first show the fact that the unanimous standard on whether the limitation of actions should be applied to the affirmation of the invalid contract isn't achieved in the Chinese judicial practice by two cases judged in the court. After that, the paper summarized three major views among theorists on whether the limitation of actions should be applied to the affirmation of the invalid contract in the abasement of collection and analysis of the theories of schools on the issue among the theorists. The first view is the limitation of actions should be applied to the affirmation of the invalid contract. The contracts couldn't be affirmed invalid if the limitation period of actions is over. The second view is the limitation of actions should not be applied to the affirmation of the invalid contract. As the object of the limitation of actions is the"claim", the most important characteristic of which is the claim should be satisfied by the obligor to perform the specific behavior of the payment. Neither the right of accusing for the court to affirm the invalid contract nor the affirming the invalid contract of the court actively have the fundamental character of the"claim". According to those, the limitation of actions should not be applied to the affirmation of the invalid contract. The third view is whether the limitation of actions should be applied to the affirmation of the invalid contract can be determined by the different kinds of invalid contracts, namely, the absolutely invalid contract and the relatively invalid contract. For the absolutely invalid contract, the limitation of actions should not be applied to the affirmation. Furthermore, the affirmation of the absolutely invalid contract should not be limited by any times. For the relatively invalid contract, the limitation of actions should be applied to the affirmation of the invalid contract. Finally, the paper analysis the theoretical disadvantages for the limitation of actions be applied to the affirmation of the invalid contract and then point out that the limitation of actions should not be applied to the affirmation of the invalid contract under the current legal framework covering laws and regulations in our country.Chapter two: Theoretical deduction of the view that the limitation of actions should not be applied to the affirmation of the invalid contract. The view that the limitation of actions should not be applied to the affirmation of the invalid contract is deduced theoretically by the theories of origin of the validity of contracts, the object of the limitation of actions, the types of civil lawsuits, and the realization of the law's justice value in this chapter. According to the view which support that the validity of the contract is given by the current law, the invalid contract is not legally binding from the beginning. However, the validity of the limitation of actions is that after the expiration of the limitation of actions, the obligor can against the claim of the obligee by the reason of the expiration of the limitation of actions. But the right of the obligee did not extinguish essentially. And the defects of the validity source of the invalid contract also can't be remedied by the expiration of the limitation of actions and may not certainly transfer to be a valid contract. Above the reasons, it can be conclude that the consequence of the limitation of actions be applied to the affirmation of invalid contracts in the law contradicts the theory of origin of the validity of contracts. The object of the limitation of actions is the right of claim, which is a relative right should be advocated to the obligor by the obligee. However, the right of accusing for the court to affirm the invalid contract is a litigation right. There are many differences in the subjects, the contents, the ways of exercise, and the law consequence of the rights between the rights of claim and the rights accusing for the court to affirm the invalid contract. Thereby, the right of accusing for the court to affirming the invalid contract is not the object of the limitation of actions. According to the theory of the types of civil lawsuits, the affirmation of the invalid contract is an action of confirmation. The essence of the action of confirmation is a confirmation of the fact and it shouldn't be constrained by the limitation of actions. The right of affirming the fact should not deprive unless the correlative facts are changed. If the invalid cause of the contract existing, the right of affirming the invalid contract should not deprive as well. The result that the limitation of actions should not be applied to the affirmation of invalid contracts is the basic requirement of the theory of the lawsuit types. Many types of the invalid contracts have illegal causes. Therefore, the validity of the invalid contract is negated compulsively by the government's intervention in the juridical system since the purpose of the law is to maintain justice of a contract. If the limitation of actions be applied to the affirmation of the invalid contract, it may lead to unbalance of the rights and obligations between the obligors and the obligee for several types of contracts according to the type of the invalid contract in the Chinese Contract Law. The justice value of the law can not be realized if the invalid contracts should be affirmed to be invalid before the expiration of the limitation of actions. Thus, the limitation of actions should not be applied to the affirmation of the invalid contract based on requirement of the realization of the law's justice value.Chapter three: The system regulation of the limitation of actions should not be applied to the affirmation of the invalid contract. Based on the current situation of the judicial practice in our country, the issue that the limitation of actions should not be applied to the affirmation of the invalid contract in the Chinese practice of the Contract Law is managed and some suggestions are put forward on the further improvement of legislation of the Chinese Contract Law, which is expected to offer a reference for solving the issue on whether the limitation of actions should be applied to the affirmation of the invalid contract and improving the legislation of contract law. The affirmation of the invalid contract without any time's limitation may lead to unbalance on the right and obligation between the obligor and the obligee in several types of contracts according to the type of the invalid contract in the Chinese Contract Law. That right and obligation between the parties can be balanced by completing the system of types of the invalid contract in which the relationships between the affirmation and the limitation of action should be studied for the various types of contracts. The contract that the parties impair the interests of a third party with malicious collusion shouldn't be a type of the invalid contract as this contract relates only to the parties'own interests. The right to determine the validity of contracts should be empowered to the parties according to the principle of the autonomy of the will in the civil law. It is more appropriate to classify the contract that the parties impair the interests of a third party with malicious collusion as a voidable contract because it had appeared in the Chinese legal system. Given the status of the invalid contract system in our country, the paper gives some proposals to improve the legislation of invalid contract law. That is, the contract that the parties impair the interests of a third party with malicious collusion should be classified as a voidable contract and its affirmation should be restricted by the scheduled period. Meanwhile, it should be explicit to stipulate in the Contract Law that the limitation of actions should not be applied to the affirmation of the invalid contract in order to avoid the unanimous practice in the judicial practice in our country.The issue on whether the limitation of actions should be applied to the affirmation of the invalid contract, which shares two characteristics of the substantive and procedural laws, is not only a basic question in the invalid contract theory, but also goes hand in hand with the trial of the invalid contracts in the judicial practice. Thus, it is onerous to study the issue that the limitation of actions should not be applied to the affirmation of the invalid contract. The paper is based on the existing study on whether the limitation of actions should be applied to the affirmation of the invalid contract, there are still many problems should be studied. The paper tried to set up the scholar's acoustical resonances on the issue of whether the limitation of actions should be applied to the affirmation of the invalid contract and deepen the study of the issue. On the basis, the paper tried to offer some suggestions that are put forward on the further improvement of legislation of the Chinese Contract Law and offer a reference for solving the issue on whether the limitation of actions should be applied to the affirmation of the invalid contract.