Font Size: a A A

Validity Of The Contract When Did Not Apply For Approval

Posted on:2017-04-20Degree:MasterType:Thesis
Country:ChinaCandidate:D H LuFull Text:PDF
GTID:2336330485998128Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The relationship between administrative approval and validity of contract is a "law dogmatics problem", which has plagued the theory and practice for many years. Article 9 of Interpretations The Supreme People's Court of Certain Issues concerning The Application of The Contract Law of The People's Republic of China(Part One)( Hereinafter referred to as FaShi ?1999?No.19) don't make a breakthrough, and made this problem more confused instead. Scholars devote themselves to explain it more successfully within the established framework, but the effect is not obvious. In order to solve this problem, it is necessary to find a different approach. It logically comes to a conclusion that whoever violating of approval obligation should be liable for breach of contract through identifying the contact requiring approval as actus solemnis and reasonably explaining the approval obligation from the reservation effectiveness of unapproved contract by introducing the concepts such as “false” and “reservation effectiveness of actus solemnis”. Besides the introduction and conclusion, the body consists of three parts:Departing from the change of our law in force, judicial judgment and academic interpretation and according to basic opinions of actus solemnis, Part?states that the contact requiring approval is a "law dogmatics problem". In view of Article 9 of FaShi ?1999?No.19 which defines the unapproved contract unenforced, Part ?considers that “the unenforced contract ”type don't indicate positively the legal consequences without approval formalities from the system interpretation, processing procedure and legal consequences, etc. It is an imperfect provision and requires a referral or configure other laws before application. When dealing with the contract without approval formalities refers to Contract Law of the People's Republic of China Article 58. “the unenforced contract ” accomplishes nothing and should not be regarded as an independent type of contract effectiveness. Besides, some scholars think contract without approval formalities ought to be classified under pending validity with the combination of FaShi ?2003?No.1 Article 30,that is to say,deny unenforced contract to be an independent type of contract effectiveness from another side. In fact, FaShi ?2003?No.1 Article 30 rules contract without approval formalities as “effective after correction”, which seems to be modification of FaShi ?1999?No.19 Article 9. Therefore, Part ? tries to put forward a processing scheme for contract without approval formalities according to the traditional theory of civil law. On the base of the statement of The Contract Law Article 44(2) and the provision of Administrative Licensing Law Article II, this part think "approval and registration" is the administrative licensing(including administrative confirmation), belong to the same legal attribute, and lack of such elements should be with its effectiveness. According to the theory of civil law, contract requiring approval and registration could be defined as actus solemnis. Approval and registration is the special requirement of the contract establishment. Therefore, contract without approval and registration is not established. In the vision of comparative law, there are some legislative case which confuse not establishment with invalidity. Our current legislation also have the same condition, which leads that judicial judgment don't make a clear distinction between them, and even directly apply the invalid normative basis. It is urgent to make a clarification.Admittedly, Article 8 of Interpretations The Supreme People's Court of Certain Issues concerning The Application of The Contract Law of The People's Republic of China(Part Two)( Hereinafter referred to as FaShi ?2009?No.5) applies contracting fault liability mechanism to regulate the validity of contract without approval formalities, but it seems to be contrary to The Contract Law.Article 44(2) and FaShi ?1999?No.19 Article 9. According to theoretical explanation, even though the contract do not apply for approval, it do have reservation effectiveness of actus solemnis. The parties should be bound by the reservation to fulfill approval or collaboration obligation which eventually make the contract into force. Upon the reservation effectiveness of actus solemnis, approval obligation is from the obligation of reservation contract. If the parties with the obligation indolent or refuse to fulfill, he will be liable for breach of reservation contract.
Keywords/Search Tags:Administrative Approval, Actus Solemnis, Establishment of Contract, Reservation, Approval Obligation, Responsibility for Breach of Contract
PDF Full Text Request
Related items