The Validity Of Contract Without Approval Or Registration

The absence of a special entry into force of elements of the validity of thecontract been scholars to conduct research. In recent years, with2009the SupremePeople’s Court interpretation of the Contract Law of the People’s Republic of China(II)"was promulgated as the entry into force of the contract type, the lack of approval,the validity of the registration contract to become theoretical circles in the ContractLaw of China in recent years a major focus. This paper attempts to empirically startwith, the court practice, combined with the results of theoretical studies of thisproblem, this issue to present their views.The first part of the problems and research methods.The second part is sorting out the existing Magistrates’ I collected. Judgmentissues: disputes arising often not parties to the registration elements are not in forcedue to the lack of approval of the contract, and simply want or do not want tocontribute to the commencement of the contract arising from, but the parties disputebecause of other reasons. It is noteworthy that, when the contracts are often enteredinto the stage of implementation. Both or one according to the agreement for or notfor a certain behavior, or a party convention when certain behaviors and not forgiving each other caused a loss, so it had resulted in litigation. Disputes on suchinterests, everyone would like to achieve itself to maximize the benefits under a set ofsuch liability for breach of contract after the effective date of the contract, theContracting negligence in the contract before the establishment of such a unified,systematic approach to solving client’s interests disputessystem of rules to beaddressed.The third part is to sort out the existing theories, introduced. Contractingnegligence, effective, and the effectiveness of fault liability that the said contractbinding. Among them, the said Contracting negligence on behalf of view: due to theapproval of the registration contract is not effective, so it is difficult to be identified with the contract effective for breach of contract. Contracting negligence based on theprinciple of good faith, including after the establishment of the contract wasinvalidated or revoked (in this case shall be approval, registration of contracts to beincluded). Based on a violation of the Contracting fault liability principle of goodfaith, the contract is invalid bears the fault shall bear the treaty fault. Effective say onbehalf of view first application for approval is a contractual obligation rather thanlegal obligations. Contractual obligation binding source should be a valid contract.The only way the parties had just the right to request that the responsibility forapproval and registration party for approval to apply. Second, our legislation does notexplicitly provide that "is not in force as one of the validity of the contract type.Again, the Fa Shi [2009] on the5th of the provisions of the "loss" is not clear. Thepractice is not good to operate, difficult to unify, as mature and breach of contract,system. Third, Fa Shi [2009] on the5th Article8of the Contract Law "Article58expressed basically the same language, which would inevitably courts have a"contract equal to the invalid contract "approach is not entered into force. Fifth, whenthe validity of the contract to determine the result (valid or effective) depends on theapproval and registration of the executive,"is often induced by the opportunisticbehavior of the parties"[Higher People’s Court of Shandong Province, China fourdivisions: the "foreign-invested enterprises disputes Trial Practice Research ","Shandong trial,20093.]. The effectiveness of negligence said: First of all, subject toratification, to say that the registration of contractual liability is not a Contractingnegligence. First to say that our contracting negligence occurred is limited to theconclusion of the contract stage. And subject to ratification, the registration of thecontract has been established to take effect not inconsistent. Second, subject toratification, the agreement about who should report to the administrative authoritiesof the obligation to register people in the registration contract before thecommencement of the contract is not effective. And contracting negligence statutoryduty to determine the parties agree to report to the administrative authorities, theobligation to register the responsibility illogical. Because, as the statutoryresponsibility of the Contracting negligence, according to law. The contract be boundby said contract binding force and validity of the contract are two different concepts. Contract binding, especially the contract after the establishment of any party shall bearbitrarily revoked. Different from the validity of the contract, the contract bindingdoes not interfere with the performance of the contract. Therefore, the parties shallapprove, register’s responsibility under the contract, not breach of contract. To thecommencement of the contract because of breach of contract generation, as aprecondition. Therefore the establishment of the Contracting negligence. In this sense,can be attributed to the Contracting negligence said.The fourth part is critical Contracting negligence. Contracting negligence tosolve the question of responsibility of the parties related to the approval of the obligor.But in the face of the subject to ratification, the registration of other issues in thecontract dispute, the Contracting negligence that often appeared to be inadequate.[Atthis point, this can be a relatively reasonable settlement of disputes liability for breachof contract can not be applicable to the contract shall be valid as a precondition.Compensation for] the parties’ reliance interests could hardly fill the parties engagedin the performance behavior of the contract will take effect estimates were identifiedlosses caused by invalid, and difficult to resolve the division of the interests of theparties. Simply because the approval obligation not parties the possibility of agreedcontract with the court finds will be contracting negligence overall applied to beapproved, registered in the handling of contract disputes to. Bound not solve the otherproblem, and fell into the "not take effect=invalid" mode. It is neither in line withthe trend of legal development [Cui Jianyuan:"The evolution of the validity of thecontract system in China," Legal Management Institute,20072. Addressed thevalidity of the contract system in China changes the trend:"Invalid range graduallyreduced. In dispute settlement and division of interest is not economic, but also givepower to the rent-seeking [Cai Lidong, Li Xiaoqian:"The effectiveness of theadministrative examination and approval of joint venture equity transfer contract,Jilin University Social Science Journal Volume50,6. November2010.] Provides theopportunity.The fifth part is valid to say justification. Through the establishment of thecontract, entered into force to discuss the validity of the contract system, in particular,entry into force of the elements and the validity of the contract between considerations, approval of set purpose and validity of the contract relationshipconsiderations, the deduction of the trial process and other aspects of finishing, andconcluded: The lack of approval, The contract of registration elements identified forthe entry into force of the contract does not conform to the values of "autonomy"Contract Law. Also brought a lot of trouble and inconvenience to the judicial practice.Explain the premise of the theory can not make a reasonable explanation, and setpurpose not in conflict with the administrative examination and approval will besubject to the approval of the registration validity of the contract and theadministrative examination and approval phase separation behavior legislation on theadministrative examination and approval, only the control performance of thecontract is in line with China’s practical and reasonable choice.