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Reaearch On Administrative Approval Of Civil Contracts

Posted on:2020-11-15Degree:MasterType:Thesis
Country:ChinaCandidate:X X LiFull Text:PDF
GTID:2416330596992534Subject:Science of Law
Abstract/Summary:PDF Full Text Request
Administrative examination and approval is a means is a means by which the state regulates activities in special fields,such as public interests,public resource allocation and supervision.For the validity of civil contracts without administrative examination and approval,the current judicial interpretation is “not effective”.However,there are four types of contracts clearly stipulated in the Contract Law,namely,the civil contract is valid,invalid,pending valid and revocable,and scholars have different views about the “not effective ”contract should be classified into which type,or exists as an independent type.There are some different views about the nature of the obligation to submit approval and the liability for breach of the obligation.Since the unapproved contract involves the intersection of administrative law and civil law,the laws and regulations are not clear,and the existence of many disputes in the academic community,which leads to differences in the understanding of relevant laws and regulations by courts at all levels across the country.Because the standards of the referee are not uniform,so in practice,there are often problems with different judgments in the same case.Around these controversial issues,this paper mainly uses comparative analysis and typological analysis methods,starting from administrative approval and contract effectiveness,comparative analysis of the views of different scholars,drawing on the relevant provisions of the German law and the Japanese law,combining theory with practice.It is pointed out through analysis that we can learn to distinguish the principle,to distinguish the examination and approval is for the effectiveness of thecontract itself,or the right to change.If the object of approval is the basis of the contract itself,the effect of such a contract is usually related to the social public interest,so it is necessary to control the contract effect through administrative examination and approval,as long as the effective requirements of Article 143 of the General Principles of Civil Law on civil legal acts are met.And now the unapproved contract is valid but not effective;If the object of approval is an act of performance,that is,a change in rights,the examination and approval of such contract usually does not aim at the contract itself.Even if the contract is not approved,it has already become effective,but the effect of actual performance is not yet approved,that is,no change in rights occurs.And as for the obligation to submit for approval,it is essentially a contractual obligation,which has independent legal effect and is not affected by the effect of the contract,The party who violates the obligation of submitting approval should bear the responsibility for breach of contract.The relative party can appeal for compulsory performance,replace performance and so on,so as to protect their own legitimate rights and interests.
Keywords/Search Tags:administrative examination and approval, effective ness of the contract, the obligation to submit for approval, the respons ibility for breach of contract
PDF Full Text Request
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