Study On Rescission Of Ineffective Contracts

Ineffective contracts,refer to the contracts which has been validly formed but has not been in force yet.In terms of legislation,the draft civil code of our country still continue the tradition of past "civil law" and "contract law" on legal rescission of ineffective contracts,there is no clear definition,but in the process of judicial practice,The Supreme Court admit this contract effect state,and there are many judicial cases which support the positive views on this topic and make a verdict.Thus,the issue of rescission of ineffective contracts involve much in judicial practice,and it is necessary to study this issue.In the thesis,I discuss and analysis the issue in five parts through law analysis methods,comparative analysis methods and empirical analysis methods.this paper based on the existing contract type,divide into three contract categories,namely effective contracts passed approval and registration,the contract with delayed conditions,and the start term contract.The first part is about the applicable objects,to find a common theoretical foundation and strong point from the continental law system,common law system and Chinese legal system,and analyses deeply the development of default conditions and conclude differences by now in the various legal systems.Eventually find out one of the theoretical points of this article:The rescission requires a binding contract.The second part is about the discussion of the validity determination of ineffective contract.First elaborates the theoretical basis of the contract effectiveness state,distinguish the establishment of contract from the effectiveness of contract,secondly make a conclusion about validity of ineffective contract,and then compare with uncertain effectiveness contract.In fact,some scholars think these two categories are the same one in the theory circle,so it is better to pave the way for specific content about ineffective contract,finally assume the obligation of the parties to an ineffective contract.At this point,concludes the two theoretical points of this paper:the non-effective contract has the binding force of the contract,so it has the precondition of applying the rescission.The third part is about the dispute about whether the ineffective contract can be terminated.The viewpoints of Han Shiyuan and Cui Jianyuan are respectively expounded and summarized.The negative view is that ineffective contract can be handled according to other systems,it is not necessary to make it overgeneralization,but it is definitely based on the principle of fairness,to protect the interests of the parties.The fourth part is about the practical investigation of this problem.the author tries to find the judgment of contract termination based on a large number of court cases in order to demonstrate the necessity and rationality of applying contract rescission,The fifth part is about the specific contents of the ineffective contract rescission.Firstly,the author summarizes and generalizes the justifications discussed above from the perspective of theory and practice.Secondly,the author focuses on the reasons for the execution of legal rescission,and expounds the basis and circumstances of the applicable rescission system for the three specific types of ineffective contracts.Finally,some scholars put forward that the rescission of the part ineffective contracts need further discussion,this often involves two or more associated with the contract,namely one part is effective,another has not been effective,so whether one part affects another one,which is discussed and analyzed,so as to realize fairness and justice.