Reach On The Contract That Needs Administrative Approval

In the era of China's planned economy,administrative approval has a strong color of planned economy.With the development of the socialist market economy,and the continuous reform of the system of "negative list of government intervention","regulation and service" and other institutional reforms,the scope and number of matters requiring approval have been reduced,the state inter venes mainly when the legal acts implemented by the parties,which related to the public interests and national economic security.Article forty-four of the contract law of China clearly stipulates that a lawfully established contract shall be effective upon its establishment,but where laws or administrative rules and regulations require approval,such provisions shall be followed.However,the relationship between administrative examination and approval and contract validity has always been a difficult problem in judicial practice.However,the judicial interpretation of the contract law clearly stipulates that the validity of such contracts is "not effective" when such contracts are not approved,and it also stipulates the obligation of submitting for approval and its judicial remedy for such contracts.However,there are some problems in these legal norms,such as the ambiguity of legal concept and the disorder of conceptual system.In judicial practice,it also makes it impossible to form a unified judicial judgment,which is not conducive to the realization of the substantial fairness of the contract,and then leads to market order failure.Based on this,this paper will conduct a comprehensive study on contract that needs administrative approval,and try to establish the contract system,so as to form a unified standard to solve such contract problems.Besides introduction,this essay includes 4 chapters.The first chapter,�The necessity and consideration factors of establishing the contract system to be approved�.�Approval� as a special effective requirement of the contract will result in the contract being in the established but �not in force� status due to its absence.Due to the complicated legal norms of the contract to be approved,the Contract Law and its judicial interpretation are not clear in its scope of application.Therefore,it is necessary to construct a contract system to be approved and fully consider the impact of administrative examination and approval on the contract validity.Contracts to be approved for the scope of the contract to be valid may be directly or in accordance with the provisions of the applicable �not in force� and the legal provisions for the application for approval.Germany is the birthplace of �legal acts� and has rich experience in the contract system to be approved.It is helpful to determine the scope of the contract to be approved for approval,and clearly identify the different administrative approval targets.The lack of approval has an impact on the differences caused by the contract.To establish a contract system to be approved for entry into force,the purpose of the existence of such a system should be taken as the starting point,and the purpose of setting up the examination and approval of various types of economic contracts should be clarified,and then the validity of the contract when �approval� is not applied.The distinction between German law depends only on the benefits,not on the path dependence.Therefore,it is only a means to establish a contract system to be approved,not an objective.The second chapter,�The effect of administrative examination and approval on the effectiveness of contracts�.Although the effectiveness of the contract is affected by the examination and approval,it is not necessarily valid because of the approval,and it is of course invalid because the approval is cancelled.The nature of administrative examination and approval is administrative licensing rather than administrative confirmation.The examination and approval are a supplementary expression of the administrative agency's civil legal acts and cannot replace the meaning of the contractual entity.A dispute arising from a contractual relationship can only be brought in a civil lawsuit and cannot be brought into an administrative lawsuit.The impact of administrative examination and approval on contract effectiveness is a realistic choice.The use of interpretation theory to bind the two is a reflection of the value of statute law.The third chapter,�The validity of the just-in-time contract to be approved�.The �effectiveness� of the contract is different from the �effectiveness� of the contract,and the �not effective� of the contract does not necessarily result in the �invalid� of the contract.The contract to be approved belongs to the transitional stage between the establishment and the entry into force,and the legal evaluation is �not effective�,which is a temporary effective status.When the administrative approval and the administrative mandatory provisions are combined,the contract will be �invalid�,but it can be treated in the same way as �not in force�.Because it is in an undetermined state,it can be used to correct the validity of such contracts.In the case where the contract has special requirements,it is necessary to distinguish between contractual restraint and contract validity.When the contract to be approved is �not in force�,the contractual binding force cannot cover the performance,but it can refer to the �expectation right� of the contract with the effective condition and the legal formulation of its conditional achievements.Although the contract �not in force� and �non-effective contract� have a certain relationship in concept,but the two are not the same concept,the contract to be approved will be borrowed from a contract system with special effective requirements in the �not in force� state.However,�not valid contracts� do not have the value of being studied as a type of independent contract.The fourth chapter,�Liability for breach of the obligation to apply for approval and judicial remedies�.Since the law stipulates that the type of liability after breach of the obligation of approval is �rejection liability for negligence�,but it also provides for judicial relief in the scope of �default liability�,there are certain contradictions."Liability for breach of contract" adopts the principle of imputation of strict liability,while "responsibility for negligence of contracting" adopts liability for fault,and therefore is more flexible.Therefore,the type of liability after breach of the obligation of approval should be "responsibility for negligence in contracting".However,if it is unable to request compensation for the performance of the application and compensation for the performance of the benefits,the obligation has no value.Therefore,the liability for breach of the obligation to submit the application can be interpreted as the amended �right of contracting fault�,and the scope of judicial relief can be extended to �default�.The scope of responsibility,in turn,protects the trustworthy interests of the observant party.Even if the contract is "not in force",the contracting party can appeal to enforce the contract and terminate the contract,but whether the court must support the claim of the observant party,the judicial judiciary must be different unless the law clearly stipulates the approval criteria are carefully differentiated before making a decision.For the construction of the �two lawsuits� model in the equity disputes of foreign-funded enterprises,merger litigation can be adopted to avoid the parties being in trouble and to protect the trust interests to the greatest extent.The innovation of this paper is that it considers the scope of application of the legal norms of the contract to be approved,and attempts to establish a contract system to be approved,and expands the scope of application of Article 44,paragraph 2 of the Contract Law,to Covers the contract that is subject to administrative approval,so that it can uniformly apply the legal norms of the contract to be approved.The shortcoming is that,given the limited research capacity of the author and the lack of practical experience,the examination and approval process and the purpose of approva l for the contract to be approved in the segmented economy are not fully grasped.Therefore,the analysis of individual approval specifications is still not thorough enough.