Analysis Of The Effect Of The Settlement Contract

Since ancient times,settlement has been widely existed in our country.Settlement is an important way to settle a dispute and to quell an argument.In recent years,settlement is also playing its role with the idea of building a harmonious society rising.However,due to the lag of China's legislation,there is no rules for disputes of settlement.Because of the lack of legal norms,When the dispute arises,the two sides are uncompromising,not only the original dispute can not be resolved,but the dispute becomes more complex.Civil law countries such as Germany,France,Japan,Quebec and Taiwan Region of China have made provisions for settlement,detailedly or briefly.The system of contract law in Anglo-American law is different from that of civil law.Anglo-American law pays more attention to the legitimacy of procedure and the practicality of system.So Anglo-American law countries emphasize reconciliation.To accomplish the aim of settlement agreement to share the litigation pressure and to eliminate the dispute,it is necessary to apply the "consensual judgment" so as to give effect to the enforcement of the content of the settlement agreement,and terminate the lawsuit finally.Compared with other countries,our country's law on extracurial compromise is still in blank state,there is no the definition of relevant concepts or clear means of relief.This paper consists of five parts.The first part is the introduction,eliciting theproblem about settlement from the 2nd case(Wu Mei case),which indicats the issue of compromise contract should be solved by the substantive law.The case appears to be a procedural issue in the execution process,but actually it is determined by the legal effect of the compromise contract.The existing research path cannot solve the dispute arising from the compromise contract,and the problem of settlement must be solved by the analysis of substantive law,which cannot be probed by the principle of procedural law alone.The first chapter states that the settlement agreement is an unnamed contract,which is applicable to the general provisions of the debt law,and then introduces the position in the system and constitutive requirements of the compromise contract.In substantive law,settlement is adjusted by the contract law.In addition to conformity with the provisions of the general rules of Contract Law,it has some unique constitutional requirements.It's a contract that the parties meet each other half way,building the legal relations of settlement for the purpose of eliminate the dispute.The second chapter expounds the nature of the contract of settlement.First,the compromise contract and similar concepts were discriminated,and the boundaries between the settlement and other similar concepts were clarified.Through the analysis,it concludes that the compromise contract is a dual service,paid,consensual and essential contract.Then analyzes the validity of the contract of settlement.The settlement agreement is not " identification" of the original legal relationship or "creation" of the legal relationship of the settlement but rather of " confirmation" of the legal relationship jointly recognized by the parties to the settlement in the process of formation.The third chapter describes the legal effect of the contract and the special case of returning to the basic legal relationship.Aiming at the issue "whether the right to remedy should be settled on the basis of reconciliation contract or on the basis of the original legal relationship when the compromise contract fails to resolve the dispute",by analyzing the existing viewpoints,we can conclude that the parties tofthe settlement have the right to freeze the right to seek relief according too the substantive law program.And lists the remedies that can be obtained through the basic legalrelationship under the three situations of invalidation or revocation of the compromise contract,the intent of the compromise contract and the statutory dissolution of the compromise contract.Chapter ? proposes that the settlement contract should be modeled.This section mainly states the reasons why the settlement contract should be typified.Supported by the analysis of the previous four chapters,and the typical of the settlement contract has the mass psychology identity,the efficiency economy and the legal feasibility.Only through naming settlement contracts can we solve the paradox of settlement.We hope that we can use the opportunity of the codification of the Civil Code to open up a new path for the settlement contract.