Absolutely Null And Void The Contract System Research

The perfection of the system of absolutely void contract is one of the important problems in the judicial practice and the contract law's theory. There are some regulations to this question in the General Principles of China's Civil Law and the Contract Law, but there are still quite a few defects in our country's current civil law. In this thesis, the author attempts to analyze the advantages and disadvantages of current absolutely void contract system in our country, and then proposes some relevant suggestions on further perfection to the system of absolutely void contract in the new Civil Code. This thesis is divided into four parts and more than about 40, 000 words.Part Ⅰ, the summary to the system of absolutely void contract. In this part, the author firstly defines the conception of absolutely void contract, and then makes an rough analysis on the legislative spirit of the system of absolutely void contract .In this way, the author has done theoretical basis for the further expansion of this thesis.Part Ⅱ, the judgment of absolutely void contract. Firstly, the author expounds the value criterion of the judgment of absolutely void contract. Secondly, through making detailed comparison and analysis on judgment criterion in the Civil Law countries and Common Law countries and the deep analysis on the judgment criterion of absolutely void contract in our country, the author puts forward his own opinions. Furthermore, the author makes a deep investigation on the rights of claiming a contract to be absolutely void, the confirming institution and relevant issues on the limitation of legal proceedings.Part Ⅲ, the legal consequence of absolutely void contract in the civil law . Through the relevant comparative analysis of legislation between the Civil Law countries and Common Law countries, the author argues that two major defects exist in the legal consequence of absolutely void contract in our country: Firstly, there is some obscure between the legal consequence of the absolutely void contract and civilillegal activity. The absolutely void contract is a kind of expression behavior in essence, and its direct consequence is just that it does not have legal force, which can't offer help to the parties in law. The unjust benefit or tort appearing in the performance of a contract is the civil illegal activity. Returning property and compensating to the losses are not direct legal consequences of the absolutely void contract. Undoubtedly, the consequence of the two behaviors is closely related to the absolutely void contract. Secondly, there is no difference between the recallable contracts and contracts of which legal force is uncertain in legal consequence, and the system of illegal prestation of dealing with it has not been introduced in our country.Part IV, the perfection of the absolutely void contract system. The author offers some suggestions from two aspects: Firstly, through analyzing the defect of judgment criterion about the absolutely void contract in the current contract law, with the foreign legislative experience for reference, the author proposes to change it into: The contract which runs counter to the prohibitive regulations in the law or administrative decree and common good custom is absolutely void, but the law or the administrative decree which doesn't think it is void is exceptional. Secondly, by means of theoretical analysis and comparing with and referring to the statutes of other countries, the author argues that we should introduce the system of illegal prestation to the statute of the consequence of absolutely void contract, and thus set up a kind of inherent tied mechanism to reduce the appearance of the illegal prestation within the civil law, impelling the parties not to conclude the absolutely void contract, controlling the absolutely void contract from the source, raising the efficiency, bringing about an advance in the economy.