A Study On The Effect Of No Administrative Approval Contract

Many scholars have carried out relevant arguments on the effect of the contractwhich not entered into force.However, the validity of the contract without approval is stillan unresolved and controversial issue controversial on the theory.In1999, the SupremePeople’s Court interpretation of the Contract Law of the People’s Republic of China (Ⅰ)explicitly put forward the concept of “the contract which not entered into force”of ArticleIX,with2009, the Supreme People’s Court interpretation of the Contract Law of thePeople’s Republic of China (Ⅱ) is in force, which makes the validity of the contractwithout approval the focus of the research. This paper attempts to focus on many courtdecisions in the judicial practice, from the perspective of legal practice raised manyquestions about the legal effect of the contract which not entered into force, combinedwith the current results of theoretical studies of this problem，this issue to put forwardtheir point of view.This paper, in addition to the introduction and conclusion, including three aspects:The first part is subject to the current results of theoretical studies of the legal effectof the contract without approval.Specifically speaking，including “the contract which notentered into force”,“the effective contract” and “the invalid contract”. In according to thedoctrine on the contract which not entered into force, the type of the responsibility on aparty fails to performance his obligations to make the contract approval，speciallyincluding “The contracting fault liability”,”Effective fault liability”,”Liability for breachof contract”.The second part is the elaboration of the legal status and the validity of the contractwhich not entered into force. Firstly, in terms of the nature and the objectives of theadministrative examination which the State sets up, that administrative approval is a wayto control the validity of the contract, which is particularly effective elements of thecontract, also the commencement of statutory requirements of the contract, which isdifferent from the registration as a commencement of statutory requirements of thecontract. In order to achieve the purpose of the administrative control, the doctrine “the contract which not entered into force” is reasonable and appropriate, thus pointed out theother doctrines “the effective contract” and “the invalid contract” are not reasonable.Secondly, the contract which not entered into force has the independent status in thecontract system, which corresponds with the effective contract,which describes the stagethat the special requirements for entry into force of the contract especially after theabsence of the special entry into force of the validity of the contract is without approval.The contract which not entered into force is unique on its position in the contents andscopes, by comparison with the other types of contracts of the contract system. Finally, asfor the legally binding of the contract which not entered into force.It must have been anestablished contract,and have the form of the legally binding. While the theory of theestablishment-effectiveness-coming into force three levels of the legal acts, The contractwhich not entered into force has the effective protective force and binding force of the law,but the effect that can fulfill the contract is not able to produce. Under the contract whichnot entered into force, the parties still bear a series of obligations based on the principle ofgood faith including acts and omissions, the promotion of the contract in force andinvoluntary tear up the contract and other obligations.If the parties are in breach of theseobligations, should bear the contracting fault liability, as for the damages specifically,should be appropriate to expand the interpretation of significant malicious punishmentunder realistic circumstances of the parties.The third part is the arguments about the relevant factors that hinder the contract toperformance into effect. The contract which not entered into force is as a temporary statecontract which can not always stay the effectiveness of such a state. To protect theinterests of the parties to the transaction and to maintain normal social order, it isnecessary to give the relevant parties to have a limited certain obligation about approval ofactive duty and the right to rescind, not only in favor of justice, but also effectivelyprevent malicious parties for grabs, causing damages to the interests of the other party inorder to protect the interests of the trust of the parties to ensure performance of thecontract.