Study Of Legal Effect Of Unauthorized Disposal Contracts

The controversy of legal effect of unauthorized disposal contracts lasted a longtime In our country’s civil law theory. Judicial interpretation of "contract law" reflectsthis debate continues. This argument one hand shows the complex of unauthorizeddisposal contracts, on the other hand shows the scholars have not reached consensuscompletely. So, legal effect of unauthorized disposal contracts still has the researchvalue. Compared with previous studies, this paper attempts to proving by judicialdecisions, strive from practice perspective to explain the research problems.Including the introduction and conclusion, this paper consists of five parts. Thefirst part is introduction, introduces the argument background of legal effect ofunauthorized disposal contracts, the problem consciousness, research methods and theexisting theory.The second part discusses from noumenon of contract. Law of contract fifty-first" disposition" refers to the act of creditor’s right, although the Judicial practice ortheory has argued that it is The juristic act of real right, but in the recognition patternof real right alteration in China is Formalism of creditors rights," disposition " refersto the act of creditor’s right."the uncertain theory" in solving the species, futurebusiness situation facing the " no right of disposition is a kind of normal " problem,has put forward " the ability of disposal ". But through the origin of textual andsemantic analysis can be found disposition ability is right of disposition, the twoconnotation is consistent. Through the" the ability of disposal" this one concept cannot prove unauthorized disposal will affect the contract effectiveness. The contractvalid, do not need the right of disposition. These can be proved in theory and practice.The third part, started from the Interest measure. From the article cited case canbe found, in practice, sometimes it is disposal argued that the contract is null and void,in order to avoid breach the contract and afford a larger loss. In the balance ofinterests, the unauthorized disposition represents three kinds of legal value. The obligee representing justice, the disposal representing freedom, the transfereerepresents efficiency. The contract is valid theory and the uncertain theory that can beabstracted into value conflict. In the trend of modern civil law, efficiency is moreimportant. In addition, By weighing benefits analysis, can be found, that validcontract, has no substantial damage to obligee. Therefore, valid contract is conduciveto protect the relative people, and does not damage the obligeee.The fourth part, from the contract law system’s point of view. Finds nodisposition contract effective from substantial protection objects closer to therevocable contract, and will not conflict with Contract fraud impairs the interests ofthe state is invalid. In the right flaw guarantee situation,"the valid contract theory"that can make the" contract law" article51th and150th join more smoothly. Betterthan the theory of uncertain. In the" contract law" article132th interpretation, whichcan be interpreted as arbitrary regulation, in order to facilitate the fifty-firstcoordination. Investigation of" contract law" has promulgated since the judicialinterpretation, the attitude is also tend to maintain without right to disposal contracteffective. This may also explain Judicial practice’s attitude tends to "the valid contracttheory".The fifth part is the conclusion. This paper argues that, for the legal effect ofunauthorized disposition, we should take the "valid contract theory". This isconsistent with our" property law". And take the" contract law" article fifty-first asarbitrary rules, in order to avoid direct mining legislation has to face a variety of cost.