The Effectiveness And The Ability Of The Contract Without The Administrative Approval

The effectiveness and the ability of the contract that needs the administrative examination and approval became a hot issue in academic research, especially in the field of the foreign investment where there is a large amount of administrative approval contract."Supreme Court interpretation of the applicable<Contract Law of The People’s Republic of China> Several Issues (I)"(hereinafter referred to as the "Interpretation of Contract Law (I)") the first of this type of contract to do a conceptual distinction between that lack Elements of administrative examination and approval of the contract "are not effective.’ On the basis of this,"Interpretation of Contract Law (II)" further discusses the responsible way of the contract which is "not take into effect". For people hold different views towards.theories on the validity of the contract related to the legal power, the understanding of the not effective contract are mixed. In this paper, combined with different levels of courts throughout the judgment, in an attempt to study the differences in the theoretical analysis based on a variety of perspectives, the author would like to offer my own viewpoint.First of all, the author collected the contract judgment approved by the administrations around different places in recent years. The cases are classified as approval contract disputes in the field of foreign investment, approval contract disputes in the field of mineral resources trading and other categories. There are some differences between different categories of law applicable to the contract. Administrative approval contract in the foreign investment is relatively more consistent handling rules, the other two contract disputes result is divergence. From the time point of view, the effectiveness of the last two years of the administrative approval contract have adopted the attitude is not identified in force, but there will be two years and then push forward finds invalid. And even in the last two years, the contract is not yet effective qualitative unified, the attitude to the responsibility is an obvious big differences. The vagueness of the description of law leads to the disunity in judicial officers’ judgments, the rule of the administrative approval contract is still not an effective system which requires further research and discussion.Secondly, the author gives an introduction to the theory of the administrative approval contract. There are elements of contract formation and effect theory, general and especially effective elements, binding of contract and effectiveness of contract, the contracting fault liability and breach of contract liability theory. Because of contention, the administrative approval of contracts in the nature of these theories have different views. Invalid say, are not effective and efficient, invalid say has been abandoned because it was too backword. the mainstream view is not yet in force said. Not adhere to administrative approval said the approval is an elements which define the contract come into force. Without the approval,the contract is not in force, but there exist disputes of the effectiveness of negligence in concluding a treaty and breach of contract theory in ineffective contracts.Thirdly, the author sorts out the contracts requiring legal effectiveness through administrative approval, and lists some of the rules of the law. To take our law " not effective contract" concept Comment:The provisions of "approval obligations" for the pre-contract obligations do not theoretically solved the parties bear the obligation of approval, accountability arising from the pre-contract obligations cannot seem to use the Contracting interpretation, ability of breach of contract is also reluctance; Although the binding of administrative approval and the effect of contract have some legitimacy, but this approach is not necessarily,even contradicts the principle of party autonomy in contract.At last, the author puts forward the concept of presumption of the contract valid, developing the existence of contracts into three stages "the establishment, effectiveness and entry into force". Formation of the contract is presumed valid, as long as there is no case which may result the contract invalid or revocable or efficacy, then the contract would be considered valid. Administrative approval is a requirement as a contract in force, although this time not yet reached the performance of the contract, but has the undisputed legally binding, the parties do not perform the approval should bear the responsibility for breach. Thus the effectiveness of administrative examination and approval of the contract phase separation. Meanwhile, concerning our law is not supposed to be modified so as to offer some judicial advices on the ineffective approved contracts in short time, including compulsory performance, cancellation of contract and compensation for a loss.