Study On The Validity Of Civil Contract Under Administrative Regulations

The state's intervention and control over private economic activities is mainly through administrative regulations on civil contracts in specific fields,administrative approval and administrative confirmation as its main method.With the promulgation of the "Supreme People's Court's Interpretation on Several Issues concerning the Application of the Contract Law of the People's Republic of China(No.2)in 2009,"the issue of the effectiveness of contracts without administrative regulations has become a research hotspot.With regard to the effectiveness of contracts requiring administrative regulations,the academic community has mainly focused on exploring the effectiveness of contracts without administrative approval.At present,there are mainly three theories:"the invalid contract" "the contract which not entered into force" and "the contract is effective." Due to the judicial interpretation of the contract law,the introduction of the judicial interpretation of the second,invalid contract has not so many admirers.The contract which not entered into force has become the mainstream point of view because of its legal basis,its main basis is the second paragraph of Article 44 of the Contract Law and the relevant provisions of Judicial Interpretation I and Judicial Interpretation II.However,the theory that in the judicial practice encountered many difficulties can not be justified,the effective contract theory was born as a result.This theory main lies in advocating the principle of classifying the applicable real right distinction.This statement was criticized largely because it could not apply the principle of distinguishing property rights by analogy to the effect of administrative approval on the effectiveness of contracts.The flaws in the above three doctrines are that there is no differentiation of the effectiveness of the contract,and no need to type the distinction between administrative regulation of the contract.Covering all unregulated contracts in a single model of effectiveness leads to a partial overview.Freedom of contract is at the center of private law autonomy,which is the soul and life of contract law.In general,the effectiveness of civil legal acts should be confirmed by the civil legal act itself,and has nothing to do with administrative acts.However,some private behaviors involve public interest and national interests,the state can intervene in the private sector on its own powers.And the purpose,degree and way of such intervention have different impact on civil legal acts.Civil legal acts should have three levels of effectiveness that be established,effective and come into force.The establishment of civil legal acts is a factual judgment,and the effectiveness of civil legal acts is a value judgment,a static evaluation,and represents the legitimacy of civil legal acts.However,the coming into force of civil legal acts focuses on the question of when the civil legal acts have the anticipated validity in the behavioral world.The state can either control the contract effectively or not,and can also control the contract to come into effect to achieve its regulatory purposes.The balance between state control and private autonomy can be achieved through the control of different levels of effectiveness.As a typical civil legal act,the contract should have three levels of effectiveness.Therefore,when determining the validity of a civil contract,the contract should first be evaluated effectively and ineffectively,and then on the basis of the conclusion,whether the contract come into force at the same time.Different forms of administrative regulation have different effects on contract effectiveness.Therefore,when judging the validity of civil contract requiring administrative regulation,it is necessary to identify whether such special contract needs administrative approval or administrative confirmation before further judging the validity of the contract.For a civil contract requiring administrative regulation,there are four types of outcomes that eventually result because of the possible time lag between effective and coming into force.The first case is that a contract has undergone administrative approval,its effectiveness may be that the contract is valid and effective or the contract is invalid but "coming into force;the second case is that the contract without administrative approval,its effectiveness may be that the contract is valid but not effective or the contract is invalid.For contracts requiring administrative confirmation,their effectiveness and coming into force are not affected by administrative confirmation.The contract shall be effective immediately in accordance with the law.However,when the contract is not confirmed by the government,its credibility will be affected.The resulting legal effect is not to be against third parties in good faith.The validity and effectiveness of the contract are two completely different concepts,which can not be confused in legislation and judicial practice.Therefore,itadvocates changing the provisions of the second paragraph of Article 44 of the Contract Law to "The laws and administrative regulations stipulate that the contract should go through the approval formalities,or that the formalities for the approval and registration formalities,the contract become effective when it is approved and registered."In addition,it is advocated to distinguish between the two concepts in thejudicial interpretation of contract law.Judicial practice cannot use the contract for approval or registration as the basis for judging whether the contract is valid or invalid in dealing with such disputes in the contract.Even if the contract is approved or registered,it does not necessarily prove effective.The contract without approval or registration does not necessarily mean ineffective.Whether the contract is valid or not depends on whether the contract has the valid requirements that conform to the law,and then determines whether the contract come into force.And a comprehensive use of purpose interpretation,proportionality principles,and economic analysis methods should be used in the process of discretionary use.