Theoretical Interpretation Of The Enforceability

The society values reflection for its development and progress. So does law.Hardly any institutional innovation and perfection go on wheels without thecontribution of reflection.Deeply influenced by Civil law, the civil law system in our country hasundergone so much that we still have many theoretical issues and interests disputesleft to be solved. Since there exists the differences of the cultural background anddevelopment path between Civil law and Common law, each of the law tradition,principle, technology are also quite different. Under the circumstances of both thelegal systems fusing, it is better that we apply the common law technology to tacklethe Civil law bottlenecks in our legislative field.This paper selects the Common law Enforceability theory as the reference object.It uses the same theory to interpret three different civil law issues in our country,including the validity of contract previous to the achievement of special requirements,the validity of gift contract and the effect before lawsuit hitting its expiration oflimitation. The right to request of the parties lacks enforceability so that the courtdoesn’t support the claim for compulsory legal effect. Through the analysis of relatedtheories and comparing with the application of the Enforceability theory, we caneasily find the theory quite elaborate and logical.Considering the validity of contract previous to the achievement of specialrequirements, on the basis of the negation of related theories, I think the contract justlacks enforceability under the application of Enforceability theory. Parties’performance of their obligations shall be effective if it is voluntary and parties whoaccept the performance have no obligation to return. Nevertheless, if one partyrequest the court to order the defendant bear liability for breach of contract, the courtwill not support the claim.In order to demonstrate the rationality of the Enforceability theory in the validityof gift contract, I first comment on different kinds of legislative attitude on it. Withthe application of the Enforceability theory, the validity of gift contract can be interpreted as established and effective from the parties agreement, but lack ofenforceability except the one concerning public welfare. The court will not supportthe claim which enforces the donor to perform the contract.Under the circumstances of expiration of limitation, I still apply to the sameresearch tactics, leading to the conclusion that the legal effect of expiration oflimitation shall be the loss of creditors rights’ enforceability.With the help of the Common law Enforceability theory, I hope I can introduce abreath of fresh air to our country’s civil law system, by maintaining the legitimatecivil rights and autonomy and contributing to the development of our legal systemand academic framework.