On The Ascertainment And Settlement Of Void Contract

Based on the Contract Law of People's Republic of China and related civil legislation, the system on void contract in our legal framework was studied from the perspective of applicable law. The lifeblood of law lies in its application, its integration with practice. Thus this thesis focuses mainly on the ascertainment and settlement of the void contract, a rather practical issue. The rule of law per se means that we should resort to practice when facing a new system whereas the old on is still in force. A comprehensive study on the ascertainment and settlement of the void contract in the contract system of China was conducted by practical research supplemented by the method of comparative and historical study. The should-be status of law was also analyzed. The void contract differs from contracts with validity of other nature in that it is certainly and deservedly void ab initio, which was impenetrate into the causes, composition and settlement of stipulations concerning void contract by legislators. So the occurring and settlement of the void contract is different from invalidation of the contracts with other validity nature. In this paper, the author only deals with the former kind of contract, the void contract. Just as title of this thesis puts it, this thesis focuses on the ascertainment and settlement of the void contract. So the thesis may be divided into two parts: the fist part concerns about the ascertainment and the second part about settlement.Part 1 may be further divided into 3 subparts. Firstly, the definition and characteristics of the void contract was introduced, as well as the method and scope for the ascertainment of void contract. Secondly, centered about the constituents of the contract, the specific ascertainment of the void contract is conducted. The contract with severe incapacity of the subject of the contract, the contract with the dissimilation of the manifestation, the contract in violation of compulsory stipulations and the contract with illegal form are discussed in this thesis, among which the contract in violation of compulsory stipulations is the main source of void contract. It is worth be noted that when evaluating the contract in violation of the compulsory stipulations and good mores, we should focus on the contract itself rather than other factors irrelevant to the contract except there exists special stipulations otherwise. Thirdly, as for special issues concerning the ascertainment of the void contract, the immunity clauses, the voidance and partial voidance of the standard clause are discussed. As for the unfair standard clauses, it is prescribed in our legislation definitely that such clauses should not be considered void just because of the interpretation of the contract provider except the law prescribes otherwise. As for the circumstance of partial voidance, it may occur for all the causes that result in voidance, so the partial voidance should be accompanied by all the types of the void contract.Part 2 is about the settlement of the void contract consisting 4 subparts. The object, method and procedure for the settlement are summarized. The introduction to the object of the settlement is to simplify the discussion. The void part of the partial void contract is separated from the whole contract, which equals to the void contract. Secondly, some specific issues in the settlement of void contract are discussed, including the dispute resolution clauses, the rectification of void transfer, the protection of the 3rd party and the relative voidance. As for the dispute settlement clauses in void contract under current legislation, it boasts of the nature of vague definition and excessively broad scope. The third party may enjoy the protection to some extent, however it is still insufficient. Thirdly, the consequence of the void contract is analyzed. The consequence of the void contract lies in its lack of binding force and may result in civil liability of restitution and damages. The breaching parties may be subject to other civil liabilities and even administrativ...