The Inspection Of Rules For The Effect Of Contract

ESince there is no denying the fact that the current rule of the effect of the contract,with its historical significance and theoretical value is not allow to ignore,but it cause to the problem of the same: one is to reduce the effect of the contract,the contract or not is qualitative as fact judgement,legal evaluation on contract time also will be backwards;2 it is to raise the effect which the contract comes into force,replacing contract effectiveness as a basis for the contract effectiveness type system;3 it is misled the allocation of burden of proof,will prove validity of a contract the burden of proof on the right of claim;The rule of four is a special effect from contract effectiveness are effective contract system in theory and specifications applicable in meaningless controversy and confusion.Contract is the basic theory of contract law category,but has long been said the shackles of fact judgment,so that its effectiveness is regarded as the inner or moral constraint and the lost of legal meaning,and zhao logic to the prevailing paradigm of the effect of the contract,the parties have established bound no contract effectiveness according to,and many other problems.Contract with statements appearance but clear the character of its specification,is a common value judgment to the lawmakers and judge;Established effectiveness can be found within the existing legal framework of provision,can also be used in traditional concept system to permit;Establishment of effectiveness is the contents of the contract maintenance,there is a contract relationship always,to the parties in the form of a limited and belong to the category of contract effectiveness.But in our country,scholars have different understanding of contract effectiveness,in the nature of the contract effectiveness,produce premise,duration,form,scope and so on all has discrepancy,reflected in the definition of the concept is a kind of "chaos" terminology.To some extent hindered the development of the theory of debt method,also go against is compiled by the integration of the specific provisions of the civil law.Effect on the formation of the contract and the phase difference and have a contact,embarks from the force of law to the legal relationship of interdependence,in sure the contract system,on the basis of value judgment,should think: contract effectiveness is binding and perform effective concept;Contract effectiveness can only occur in the contract;Contract effectiveness is the party and the third person form and essentially legal binding force.And in terms of effective special rules,on the one hand,the "contract law" article 442 and 5 of article 52 as clause,the parties of the former to contravene the belongs to thelatter specification,for its tolerance evaluation;A comparison of the two,the latter in purpose and function realization,the foot can be replaced.Legal obligations apply for independence become the breakthrough,on the other hand,"without the approval of the contract is not effective,the contract does not take effect,it is impossible to fulfill its obligations to approval," the key to a vicious cycle,status,effective contract should return theory "let theory of theory and legislation of legislation".In the attached delay condition,the beginning period of the contract,the contract has to perform,not represent must immediately satisfied,nor are consumed by agreed by the parties is not real-time performance.Conditions agreed by the parties to the delay or beginning period can't decide the contract have to perform effective or not,his legal purpose of the real purpose is to avoid for their own do not immediately to perform the contract obligation arising from legal liability.Reflection is to perfect.Our country civil law theory,contract comes into force is required: established condition and the effective important documents and contract,whether the effect is unknown,only to meet the requirements of effective,can be legally effective.However,whether from the established condition regarding security involves limited autonomy,autonomy,the effective important documents and has the affirmative,or from the established condition,has the negative effect of facts or even from the procedural law established condition,the claim contract rights,effect factor of proof on the fact that by denying the point of view of contract effectiveness is proof,this kind of "positive","equal" the practice of effective regulations requirements and established requirements are not satisfactory.Established through the establishment of the "effective" presumption rules,and makes positive effect "elements" into "effective deterrent for" negative,can improve the ills.This scheme to clarify between the various factors,which affect the contract comes into force,and the private autonomy of private law between the dominant principle significance,and established "the constructive effect and effective deterrent for" to reconstruct the contract comes into effect the system structure of "element system",which highlights the private autonomy of decisive role to contract effectiveness,and make private autonomy system implementation.