An Empirical Analysis Of The Effect Of Disposition Of Contract

The legal effectiveness of unauthorized disposal contracts has aroused academic controversy since the advent of article 51 of contract law. Two views were put forward, one is “the Effectiveness-pending Contract”, the other is “the Valid Contract”. The appearance of Interpretation of the Supreme People’s Court on Issues Concerning the Application of Law for the Trial of Cass of Dispute over Contract of Sales aroused more controversy. many scholars who support “the Valid Contract” consider the Interpretation as the amendment to article 51 in Contract Law about Unauthorized Disposition Rule. Scholars who support “the Effectiveness-pending Contract” think that the scope of application of article 3 of the Interpretation is different from the scope of application of article 51 in Contract Law, so they believe that the Interpretation is not an amendment to article 51 in Contract Law. To know the state of legal effectiveness of unauthorized disposal contracts in the practice of court judgment; how the court identifies the effectiveness of unauthorized disposal contracts; what courts’ understanding of article 51 of Contract Law, article 132 of Contract Law, article 3 of the Interpretation is, especially for the understanding of article 3 of the Interpretation. And, to explore the difference between theory and practice, will be conducive to improve Unauthorized Disposition Rule.The empirical analysis of 189 court decision related to legal effectiveness of unauthorized disposal contracts answer those questions. Before the appearance of the Interpretation, the court adopts the theory of the Effectiveness-pending Contract. Court think unauthorized Disposition contract is invalid without obligee ratification, or disposer getting disciplinary powers. After the appearance of the Interpretation, most of court support “the Valid Contract”, and, adopt “Trennungspringzip”.Court think unauthorized Disposition contract is valid. Although most court think unauthorized Disposition contract is valid, the understanding of legal effectiveness of unauthorized disposal contracts is not unified in the court system. In the sample of the case, there appear clear divergence that about on legal effectiveness of unauthorized disposal contracts and the scope of application of article 3 of the Interpretation amony superior and inferior counts in the same area at the same time.In order to avoid confusion in judicial practice caused by the disunity of understanding of legal effectiveness of unauthorized disposal contracts, it should to take measures to unify understanding of legal effectiveness of unauthorized disposal contracts at the legislative level. At present, most of the court has admitted.“Trennungspringzip”, and, article 15 of the Property law has already distinguished the shifting of jus in rem and its reason. So, “Trennungspringzip” should be established in the Contract law. If “Trennungspringzip” can’t be established, there should be special provisions on chattel sales contract and real property sales contract, which is that disciplinary powers is not taking effect factor.