On The Identification And Handling Of Invalid Contract

To cognize and deal with the void contract is a very important problem in legal study and practices. However, there are some general principles on the cognizance and dealings in General Principles of China's Civil Law and Contract Law, there are still quite a lot ambiguous thinks and doings in legal study and practices. In this article, the author talks about the definition, criterion for cognizance and others problems, and gives the division of related problems on the base of analyzing and comparing the legislation institution of other countries. By doing so, the author tries to perfect the void contract 'institution to adapt the market economy in our country. This article is divided into four parts.In the first part, the author focuses on the today' s circumstance of void contract in China after a detailed analyze of practical cases and data to illustrate the legislation goal and background. Indifferent legal system, such as Civil Law countries and Common Law countries, there are quite different institutions of void contracts. After a comparison, the author studies the related stipulations in China' s contract law. Whether the void contract is a contract is still doubtful. There are two quite contrary views on it in China' s legal study circle. The author thinks that the void contract is a contract in fact for it has the characteristics of a contract. And also, the author discusses the relations between the formation of contract, effective or not, lawful or unlawful, etc.In the second part, the author tells us that there are different criterions on how to cognize the void contract in different countries or regions. There are the following: the formation of contract, the body of contract, meaning expression, lawful or not. The author gives a detailed analysis on all of them.In General Principles of China's Civil Law and Contract Law, there are similar terms. This article classifies them into three categories after a generalization. They are: (1) the limitation of body's ability of signing a contract; (2) the false expression of willingness; (3) the violation of present law or public interest. The reasons of causing a contract void are presented in the item 52 of Contract Law. In the following parts, the author gives a detailed analysis to them.The third part tells us how we should deal with the void contract. One is procedural dealing, and the other is bodily dealing. In the procedural dealing process, the problems like who has the authorization of confirm a void contract and supervision of contract are involved. While in bodily dealing process, the author begins with today's legislation in China after a comparison of two kinds of unlawful giving in other countries. Then the author gives a detailed statement on three ways of dealing with void contract in China: property returning, compensation of damages, and property recalling.In the forth part, the author talks about the stipulations on void contract in China's law system, which is quite unpractical, and cause many problems in practices. To perfect China's institution on void contract, reduce the sphere of void contract, must have the aim of contract as the goal. Taking all parties' willing into consideration, and leaving the voidance of contract as the way of remedy should be a basic principle. In the end of this article, the author thinks that in the Item 52 of Contract Law, which stipulates void contract is illogical, and gives particular analyses. At last, the author points out contract law should try its best to maintain the freedom of contract and safe transaction.