Study On The Obligation Of Submitting For Approval In The Contract That Needs Administrative Approval

With the demise of the planned economy, the administrative approval items have been greatly reduced, but in specific areas relating to people’s livelihood, the state based on the purpose of protecting the public interest, remains a large number of contracts that needs administrative approval. Administrative approval is the especial effective elements of the contract. The contract lack of especial effective elements has existed, but it is not in effect. The law does not clearly define what effect the contract have, so how to deal with the disputes which are aroused by the party not applying for administrative approval, are difficult problems in judicial practice.To resolve the disputes which are aroused by the party not applying for administrative approval, we must first clarify the approval of legal and administrative regulations, the registration whether the matter should apply the provisions of article 44 of the "Contract Law." Faced with these numerous legal norms, it should not be based only on the literal meaning of the text for approval to take effect, we should judge whether a particular approval for admittance into industries will affect the validity of the contract. We should explore specification purposes to determine whether the administrative examination and approval requirements is the especial effective elements of the contract or not. From our current judicial practice, in the disputes which are aroused by the party not applying for administrative approval, due to the judicial interpretation, most of the judges hold the view that the contract is not in effect. But about the allocation of specific rights and obligations of the parties, there are different approaches, by analogizing contract invalid or effective. The judges hold different views on whether confirm the obligation of submitting for approval. In the affirmative obligation of Submitting for approval, the source of the obligation, breach of obligation of submitting for approval and obligation of submitting for approval the contract not in effect whether disarmament or not, are not the same point of view.The reason of justice confusion lies in different understandings of the validity of the contract. Therefore, to solve the problem, the validity of the contract should be clearly stated as a precondition. In theoretical circles, there are three different views about the state of the contract which lack of administrative approval, being void, being valid and being not effect. People who think the contract is invalid, think that it would act without the approval of administrative violations of law identified as mandatory effects of provisions of the act is clearly unreasonable. Among people who think the contract is valid, there are two ideas. One think the meaning of the parties is the source of the validity of the contract, as long as the parties reached a consensus, contract shall take effect. And the another think that you can distinguish between property rights theory, apply by analogizing it to the approval of the contract takes effect, the administrative examination and approval is limited only to fulfill the contract without affecting the validity of the contract. The effective view can justify their own existence difficultly, and are beyond the context of existing laws. It is Legislative proposal in a certain sense. Not in force only said in a brief description of the contract but not yet effective establishment of the state, specifically the state of validity of the contract is not yet clear. Upon the establishment of the contract would be for the parties concerned, not free from the binding force, but this is generally not binding on the parties subject to a correction in particular elements of the obligation to take into effect.The reason of why the contract binding obligations do not impose a obligation of completing especially effective elements, is that it ensures the system to achieve its purpose. But the purpose of administrative examination and approval system is to achieve a national public interest does not lie in giving either party the opportunity to go back on special protection. Approval obligations to fulfill the contract in force with the promotion of function, such as the denial of the purpose of contract approval obligation exists parties can not be achieved at the same time to give parties who are in bad faith, an excuse for escaping responsibility for the contract, is clearly unreasonable. In addition, the parties have agreed to the terms of the approval obligations, and having the same characteristic with the dispute settlement provisions of this clause means, should be independent of the other terms of the contract. It should be taking into effect when the contract was established. Avoid unnecessary waste of resources, only in the contract has been established and there is no other severability, the parties shall bear the obligation of submitting for approval before approval. Based on the principle of good faith, the obligation of submitting for approval includes not only do their utmost to take the necessary measures to prepare the material for administrative approval, but also change the contracts reasonably to promote the contract through the approval. The obligation of submitting for approval is procedural obligation.It does not include payment, so it should be positioned as the prior contractual obligations.The obligation of submitting for approval is different from the typical prior contractual obligations. It can continue to perform in nature. And the obligation exists when the contract has existed, so it can’t violate the freedom of contract. When a party fails to fulfill obligation of submitting for approval, the other party has the right of requesting the one party to continue fulfilling the obligation. When a party fails to fulfill the obligations of submitting for approval or the obligation has been unable to continue fulfilling, the other party has the right of relieving the contract. But it is worth noting that, the obligation of submitting for approval can promote the contract entry into force, according to the principle of effective promotion of the contract and encouraging trading, when the party refuses to perform or delay performance of the obligation, the other party should go through the notice procedure before releasing the contract. Liability for breach of obligations of Submitted for approval should be Culpa in Contrahendo, but Culpa in Contrahendo is not limited only to fulfill the interests of the compensation. So the scope of compensation can include fulfilling interests.