A Study On The Relationship Between Administrative Approval And The Validity Of Contract

According to article 44 of the contract law of the People's Republic of China,"alawfully formed contract becomes effective upon its formation.Where laws and administrative rules and regulations provide that formalities such as approval and registration shall go into effect,such provisions shall apply.In accordance with the provisions of this article of law,a contract generally becomes effective upon its formation,provided,however,that the provisions of this article shall be followed if the administrative examination and approval(" approval and registration ")is required by law.On the face of it,the above legal provisions are incontrovertible,but in academic research and judicial practice,it has been found that the above provisions alone cannot solve problems such as: what is the validity of the contract during the period from the establishment of the contract to the approval? Under this kind of contract validity,the nature of the obligation and how to remedy in this kind of contract.Aiming at these problems,different scholars put forward different points of view:the contract comes into effect theory point of view of scholars believe that,without effective itself shall be used as a kind of form,to solve the contract to handle the examination and approval after this period of time before the effectiveness of the state,the legal consequences for approval obligor fails to fulfill its obligations to approval contract comes into effect and of course to apply to the contracting fault liability;Scholars who hold the theory of invalidation hold that the so-called "contract not taking effect" in the legal interpretation is to recognize that administrative examination and approval is the precondition for the contract to take effect."not taking effect" or entering into effect or going invalid.Scholars holding the theory of undetermined effectiveness hold that "undetermined effectiveness" is an uncertain state of effectiveness,which is similar to the state of undetermined effectiveness.Therefore,relevant problems should be solved with the theory of undetermined effectiveness.Scholars of the theory of contract validity hold that,starting from the "debt and substance dichotomy" and based on the principle of contract freedom,as long as the contract within the scope of contract freedom is valid even if it has not been approved,the legal consequences are calculated according to the performance rules.None of the above theories can solve the problems in judicial practice.The legislation of our country stipulates the influence of administrative examination andapproval on the validity of contract.In judicial practice,although most judges recognize the validity of the contract "not in force" stipulated by the Supreme Court's judicial interpretation,there are still a few judges confuse it with the definition of invalid and effective contract.Judges still have a large amount of discretion over the legal consequences of failure to take effect,namely,the obligation to apply for approval and the consequences of violating the obligation to apply for approval,which indirectly makes the result of such judgment unpredictable.In order to solve the above problems,more and more judges tend to classify administrative examination and approval and try to determine the different effects of different types of administrative examination and approval on contract effectiveness.Throughout our country's current administrative examination and approval object,should be divided into "market access to administrative examination and approval","the right to transfer such administrative examination and approval" and "damage control" of administrative examination and approval,the requirement for "autonomy" are also different,so the corresponding contract will also be divided into "market access to administrative examination and approval of contract","right transfer contract of administrative examination and approval" and "damage control class administrative examination and approval of contract",three kinds of the relationship between contract effectiveness and administrative examination and approval,its legal consequence also have difference.Therefore,the research on the relationship between administrative examination and approval and contract effectiveness is more meaningful and more acceptable in practice than the above qualitative research.Under the category research system,the obligation of approval is binding with the establishment of the contract,which is not a contractual obligation,but a contractual obligation.Since its contractual obligation,because of the "contract law" article 107 of this law in the liability for breach of contract is not compulsory for what kind of effect condition can apply to the liability for breach of contract,the current "inactive" in the framework of legal interpretation,can apply to continue to perform and damages that can apply to the liability for breach of contract,such as relief way,also can terminate the contract.In this way,we can pursue the fairness and justice of the law in a practical and realistic way,instead of mechanically applying legal provisions and theories,which is more conducive to realizing the protection of private rights and interests by law from the infringement of public power,and giving play to the role of law as a booster of market economy.