On The Validity Of Contracts Without Administrative Approval

The administrative examination and approval of contracts is an important means for the state public power to regulate economic life.The state shall,through the administrative examination and approval of contracts,stabilize the order of the market economy,rationally allocate natural and social resources,and thus safeguard the interests of the state and society.From the point of view of the end,the administrative examination and approval of the establishment of the contract is absolutely legitimate,but the end does not completely mean the means is legitimate.The administrative examination and approval of contracts is the control of public power over the field of private law.This paper takes the contract without administrative examination and approval as the research object,sorts out relevant legislative and judicial cases,and combines the theoretical views of scholars to find out the shortcomings of legislation and judicature,and on this basis,explores the path of improvement.This paper is divided into four parts:Part one: according to the current situation of the contract of administrative examination and approval,sort out the relevant legislation and typical case judgment documents of the contract of administrative examination and approval,and find out the existing problems in legislation and judicial practice.In terms of legislation,laws,judicial interpretations,administrative regulations,administrative rules and meeting minutes cannot be effectively linked,and legislative language is vague and contradictory.In judicature,due to the inadequacy of legislation,judges often try with "principle clause",and the judgment standard is vague,resulting in different judgment results in similar cases.Part two: clarify the basic problems of contract administrative examination and approval,including the value,nature and scope of contract administrative examination and approval;This paper summarizes and sorts out the theories that have not been recognized for the validity of contracts without administrative examination and approval,including the theory of invalidity,the theory of non-effectiveness and the theory of validity pending decision,and analyzes the advantages and disadvantages of each theory.Part three: discuss the obligations of the parties to the contract without administrative approval;This paper sorts out scholars' different views on the legal liability of contracts without administrative approval,including liability for contracting fault,liability for effectiveness fault,liability for breach of contract and liability for contracting fault,and analyzes the advantages and disadvantages of each view.Analyze what remedies can be taken by the parties to a contract without administrative approvalPart four: explore the legislative path of administrative examination and approval contract.Through sorting out the viewpoints of different scholars,this paper puts forward three paths,that is,the path to identify the "validity of the contract",the path to identify the "pre-contract" and the path to identify the "contract subject to legal conditions",and analyzes the feasibility of these three paths.