On No Authority To Sanction - Explanation Of Contract Law "51

The discussion of legal effect of unauthorized disposition contracts derived from the contract law item 51 is signficatly important to the construction of China civil law system.The treatise below discusses the design of unauthorized disposition system from various aspects and holds the view that unauthorized disposition should not lead to the contracts' invalidation,1. Viewing from countries with advanced civil law systems,As to the civillaw,,the representative of creditor's right theory real right alternation mode,prescribes that disposing other's property -typical unauthorized disposition-as invalid. But modern scholars studying civil law of France start to realize that it isn't in reason,and they tend to hold the view that disposing others' property is relative impostble.So the contract should be valid.,the representative of real right theory real right alternation mode,takes the real right act theory. It considers that if unauthorized disposition only makes the legal effect of real right act uncertain, while the debt constract still valid. Common law takes the view that the actor should take responsibility of what has done with the precondition of a valid contract.Even analyzing the consideration theory of commom law,the unauthorized disposition wont lead to the lack of consideration then make the contract invalid The international demonstration law,representing the development trend of world law,even expresses the theory that unauthorized disposition had nothing to do with validation of contract in a more explicit way in their legislation.Hence the countries with advanced civil law all think or tend to mink mat unauthorized disposition contract shouldn't be invalid just only because of the action of unauthorized.China civil law should also follow the trend.2. Viewing from basic theory of law economics. Analyzing the externalityof unauthorized disposition,we can draw a conclusion thatunauthorized disposition should be allowed to take place with the precondition of clarifying the rights and obligations of the actor explicitly Since the actor will negotiate with obligee and alienee according to the market mechanism. Via entering into agreement,the three parties' personal interests will all close to social mterest.Thus forms the best state of Pareto.The responsibility rule of law economics further states that if the unauthorized disposer gets the right through legal compensation instead of market business.he or she can use resource more efficient and cost less,The key point of system design doesn't rest with forbidding unauthorized disposition but ascertaining unauthorized disposer's compensation standard.The general conclusion of economic analysis method is that the other party of business is aware of or should be aware of the one he deals with is unauthorized,then the contract is invalid.Otherwise the contract should be valid.3 .The gist lo judge a contract's legal effect is item 52 of contract law.According to mis item,only when unauthorized disposition harm country's interest or the other party of business still conduct the business after knowing that the one he deals with is unaumorized,the unauthorized disposition contract is invaiid.The former invalidation is because of consequence of tehavior,the latter invalidation is because of the other party's malice.Aumorized disposition contract is also invalid in the same circumstance. So there is no relation between unauthorized disposition contracf invalid and the one is unauthorized.4. Viewing connection between unauthorized disposition system and correlative relevancy of civil law system.Firstry,it is against the relatively principle of con tract. Secondly, it is against the incapable payment theory of traditional civil law.Thirdly,it is against right blemish surety principle of contract law'item 150.Fourthly,it is against the bona fide acquisition systent.Fifthly,viewing three illegal profits circumstance derived from unauthorized disposition, it wont make too muchdifferent in...