Study On The Effectiveness Of Contracts Without Administrative Approval

The requirement of administrative examination and approval for a particular contract is the embodiment of public law and the means for the state to intervene in a particular transaction through administrative examination and approval.In order to achieve the purpose of safeguarding the public good,such legal setting has legitimacy and necessity.After all,the contract act belongs to the field of private law autonomy,which should respect the autonomy of will to the maximum extent,and the intervention of public power should notgo too far.In order to find a balance between the two,the theoretical and practical circles have different opinions about the validity of contracts that need administrative approval without approval,and the legislation does not give a clear and positive answer to this.In order to promote the unification of legislation and justice and maintain the dignity and authority of the law,the author studies the relevant problems related to the effectiveness involved in the non-submission contract by studying the relevant documents and cases,drawing lessons from the relevant foreign systems and theories,and draws his own opinions.In the relationship between the administrative examination and approval and the validity of the contract,the administrative examination and approval of the contract is similar to the concept of administrative license,which is a special requirement for the entry into force of the contract,but not a decisive one.Whether the contract is approved or not does not automatically make the contract valid or invalid,and the validity of the contract should also be judged according to the rules in the field of private law.When judging the validity status of the contract without approval,we should not simply consider that the contract without approval is equivalent to the violation of the mandatory provisions,and then find the contract invalid,nor should we simply apply the principle of distinction in property law that approval does not affect the validity of the contract and then determine the validity of the contract.Instead,different types of approval contracts should be treated differently.Using the mode of typology,for the approval of contracts involving rights changes,the principle of distinction is applied to determine the validity of contracts not submitted for approval;for the approval of contracts that do not involve rights changes,combined with the specific provisions of such contracts to determine the final validity of contracts,when the validity of contracts is uncertain,the concept of "not effective" in judicial interpretation is adopted.For a contract that needs administrative approval,the application for approval is the obligation to make the contract effective.Therefore,it is more reasonable to classify the application obligation as a legal obligation of performance,which has independent and binding force first,breach of the obligation has its own scope of liability for breach of contract.When the obligee fails to submit for approval,the obligee may demand the enforcement of actual performance.When the obligor refuses to perform,the obligee may submit for approval or rescission of the contract on his own,at the same time,according to the specific losses of the compliance party,the defaulting party shall be required to bear the benefit of trust,the benefit of performance or even the inherent benefit of damages.