Study On The Contract For Approval And Entry Into Force

China's administrative examination and approval system is an important system for the state's control of economic activities and the protection of transaction security.Administrative agencies set up administrative examination and approval to manage important areas such as national economic security and people's livelihood.Therefore,contracts subject to administrative approval have both public law.Nature also has the nature of private law.At present,judging from a large number of judicial practices,our country's emphasis on the entry into force of contracts for approval has been continuously improved,and the discussion in the theoretical circles has never stopped.Although the academic community has basically formed consensus on the effectiveness of the treatment of contracts,from the court's specific judgments,there are still considerable differences in the judgments of different courts on similar cases.Some courts still regard the approval of effective contracts as valid contracts,invalid contracts,and undetermined contract types.The understanding of the legal consequences,the determination of responsibilities,and the aggrieved party's remedies for non-effective contracts is also very different.It is beneficial to the protection of the rights of both parties to the contract.The non-effective contracts in China are mainly concentrated in the fields of mining rights,prospecting rights transfer contracts,foreign-funded enterprise contracts,and foreign-related equity transfers.Although the “Explanations of Some Issues in the “People's Republic of China Contract Law”(1)” are clearly defined,The validity of the administrative examination and approval entry into force of the contract is not in force,however,the civil law scholars of the past and the "General Principles of Civil Law" adopted in 2017 did not classify the contract as "not in force" as a separate attribute of effectiveness.From this point of view,the disputes on this issue in the theoretical and practical fields will continue.This article will combine the specific cases in judicial practice,the opinions of different scholars in the theoretical circle,and the similar provisions in the German law and the Japanese law to compare and analyze,and put forward their own views and opinions,and hope to make beneficial for the improvement of the relevant legislation of the entry into force of the contract.Contributions.This article discusses issues in accordance with the following ideas:First of all,the author simply lists several typical judicial cases in different fields regarding the approval of the entry into force of the contract.By comparing different courts to issue different judgments on the same type of issue and the differences in applicable laws and regulations at all levels,it is concluded that the specific areas in which the approval and entry into force of the contract arise are mainly concentrated in foreign-related equity transfer,foreign-funded enterprises,state-owned natural resource ownership contracts,and other fields.At the same time,it analyzes the relevant legislation and setting purposes of the country,and believes that there are huge differences in the field of judicial practice focused on the validity of the contract,the issue of approval and the unity of the contract itself,the type of contractual liability and protection.Secondly,the classification sorts out and introduces the relevant theories of the theoretical community on the approval of the effective contract.In terms of the nature of the contract,it is divided into valid,invalid,and non-effective.The current mainstream view is not valid.At the same time,the reasons for the existence of the examination and approval effective contract,the nature of the examination and approval authority of the administrative authorities,the consequences of non-performance of the administrative examination and approval,and the effect of the examination and approval of the administrative authorities on the effectiveness of the contract were separately discussed in the context of the specific link between administrative approval and contract effectiveness..Drawing on the useful experience of German law and Japanese law and the classic thesis of famous scholars,it is clear that administrative examination and approval is a formal examination rather than a substantive examination.It is an ex post supervision rather than an affirmative action.It is different from the administrative license,and it is different from the state in that it violates the consequences.Mandatory regulations.Thirdly,it introduces the nature of the nature of the approval of the approval of the contract,and it is divided into the contractual obligation,the payment obligation,the accompanying obligation,and the type of liability for violation of the approval obligation is divided into contracting fault liability,breach of contract responsibility,and liability for negligence.Through analyzing the advantages and disadvantages and the experience of foreign civil law,it is believed that the obligation for approval is statutory and independent in the approval contract,and it is a kind of obligation from the payment.The violation of the obligation should bear the liability for breach of contract.The specific analysis of the rationality of the assertion was carried out.Finally,the author discusses the way and means of remedying the rights of the parties involved in the approval of the contract.It is believed that the parties to the contract of review and approval are entitled to the statutory right to cancel the contract instead of the right to revoke the contract,and make specific explanations for the reasons therefor.In respect of the victim's rights and remedies,he tends to restrict the parties to the examination and approval of the contract in accordance with the protection of the effective contract.That is to say,refer to the related methods of China's "Judicial Interpretation of Foreign Investment Enterprises Dispute Cases(1)" on specific relief methods,including mandatory performance,rescission of contract,and damage compensation,and the scope of damage compensation must include both trust interest and performance benefit.Loss.