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The Contract Research On The Obligation To Submit For Approval Was Not Complete

Posted on:2021-05-25Degree:MasterType:Thesis
Country:ChinaCandidate:X Y LiuFull Text:PDF
GTID:2436330623971480Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Civil and Commercial trial need approval,there are a large number of contract with respect to its legal effect qualitative and legal consequences configuration,although the Supreme People's Court judicial interpretation and meeting minutes made rules,but it doesn't mean the end of the academic dispute or uncertain,scholars around the dispute applicable to law without the approval of the effectiveness of the contract and never stop.As for the development of the system of unapproved contracts,judicial practice has gone through a process of deepening the understanding of the concept of "unratified contracts",the concept of "unratified contracts",the generation of performance and contracting fault responsibility,the independent effectiveness and breach of contract liability for approval of the provisions of the three stages.On the whole,the system of "non-effective contracts" is conducive to resolving the deadlock of contracts,practicing integrity and justice,carefully adjusting the boundary of power,and supporting administrative supervision according to law.As for the validity of the unapproved contract,there are mainly theories such as "invalid contract","validity contract pending","new independent contract type" and "effective contract".In terms of the existence of "non-effective contract",it shall be recognized that the formation,validity and effectiveness of the contract are three parts,which correspond to the binding force,narrow sense of validity and determination of the contract respectively."non-effective contract" shall be defined as a valid contract.This theory can solve the value concern in the trial practice and accord with the future development direction of legislation.The obligation of submitting for approval is independent and can be performed.Although it belongs to the performance of an act,there is still room for the application of direct performance in addition to proxy performance and indirect performance.The two channels of contracting fault liability and liability for breach ofcontract can not be consistent with each other,and each channel has made efforts to fill in the gaps in view of their shortcomings.Considering the future legislative development direction,the theory of effective contract and the channel of liability for breach of contract are more in line with the requirements.In fact,the existence of the concept of the obligation contract is a helpless move of the interpretative theory.From the perspective of legislation,insisting on the principle of distinguishing the contract validity from the corresponding right change can completely solve the current contract deadlock and moral hazard.
Keywords/Search Tags:A contract not in force, Theory of effective contract, The obligation of submitting for approval, Liability for breach of contract
PDF Full Text Request
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