On A Contract With The Commencement Of The Contract Between The Effectiveness

The establishment of the contract is linked with coming into force generally. The establishment of the contract comes into force immediately, but in some cases, the establishment separates from coming into force, and they are in different time order. They reflect different value ideas at this moment, which has already become the common understanding of the theory circle. However, the modern contract law pays little attention to the effectiveness and responsibility of the period between establishment of contract and coming into force. The three questions announced in the first part in this text disclose the deficiency in the study on modern contract law theory and the defects of the contract law effectiveness system. Taking these three questions as the point of departure , this thesis probed in the relation, difference and responsibility during this period between the establishment and coming into force.This text can be divided into five parts. The first part probed into and summarized briefly contract theory of establishment and coming into force, and on this basis ,put forward three questions which are difficult to answer in the modern contract law theory.The second part studied the history , significance and theoretical background of the difference between the establishment and coming into force separately and classified the contract between establishment and coming into force. The establishment of contract refers to the consensus of the main contents of the contract ,the validation of contract means that the already established contract has become legally binding because it has met the requirements of statutory valid conditions. The establishment of contract reflects the parties' free consultation, which is an indication of the free will principle .It is a judgment of fact existence, that is whether the contract exists. However ,the validation of indicates that through evaluating the consensus of the parties' by law, the state has interfered in property exchange relations. It concerns that whether an established contract can be under the protection of law and to what extent it is under legal protection. The distinction between the establishment and validation of contract reflects the contemporary spirit of contract law -the combination of contract freedom (establishment of contract) and state interference(validation lf contract). As a kind of juristic acts by both parties, contract is in essence a consensus of both parties or multiple parties. Will is that the actor expresses his internal willingness to do some civil legal acts through specific ways. Will consists of two parts: internal willingness and external expressing. In legal practices, there may be an inconsistence between the two factors. According to the differences of will maker's willingness and expressing, there emerges the division of will doctrine and expressing doctrine. Under the strict expressing doctrine, the will made through legal manners is deemed to be true will by law. The defects of the will are not recognized by law in this aspect, thus it is difficult to distinguish the establishment of contract from the validation of the contract. Under the strict will doctrine, the establishment of contract should be defined by the consensus of each party's true willingness. Therefore, it excludes the defects of will due to inconsistence between will and expressing or unfree will. That is to say, the established contract must be contract without will defects. In this case, once a contract without will defects is established, it will become effective immediately. Therefore, only to adopt the compromise between the two doctrines, can there be the possibility of distinction between the establishment and validation of contract. According to the distinction of valid conditions, there can be statutory valid conditions and will-made valid conditions, relying on whether they are specified by law or determined by the concerned parties. The statutory ineffective contracts include: contract whose effectiveness is to be determined, contract that need registration or examination and contracts that should be carried out practically. The will-made ineffective contracts include contracts with conditions precedent and contracts with a valid term. The effectiveness of contract, generally speaking, is the performing effectiveness after the contracts have become valid. The effectiveness in laws of our country all means the performing validity of the contracts after their validation. But under the theoretical framework that there is a period gap between the establishment and validation of contract, the effectiveness and validation of contract, the effectiveness of contract shall include two parts: the effectiveness after establishment and effectiveness after validation. The effectiveness after establishment of contract is binding force, which means that neither party can arbitrarily go back on his words and terminate the Contract without justified reasons, or cancel the contract without reasons unless there is agreement between the parties or there are terminating reasons. Simply speaking, one party cannot unilaterally terminate the contract. Effectiveness after the validation of contract is what we discuss generally, it means that in order to realize the content of the contract what kind of rights and obligations are to be confirmed by law and for which legal measures are to be adopted. First, it is right-and-duty relations between parties, then it is legal subsequence caused by abnormal happening of rights or duties. In addition, on some occasions, it may involve a third party.The third part probed into effectiveness content separately after the establishment and coming into force, studied various theories of the effectiveness and researched the effectiveness of the establishment firstly. On this basis, the author analyzed the responsibility of the period between the establishment and coming into force of the contract . This part also probed into the relief measures of contract of the period between the establishment and coming into force. Generally speaking, the concurrence of establishment and validation of contract is the prerequisite of effectiveness of contract that we generally discuss in civil law studying field. As for the matter of source of effectiveness of contract, different countries have different doctrines, for example, there are such theories as "personal will", "the sacredness of promise", "social moral", and "just and fair". Among those theories, the most influential ones are "will effectiveness theory", "statutory effective theory" and "trust liability theory". These theories did not make any distinction between the effectiveness after establishment and effectiveness after validation, so it is necessary to analyze various theories concerning effectiveness of contract, try to find the theoretical basis for the effectiveness of contract formation and the basis for assumption of responsibilities for not carrying out the according duties that agreed during the formation of contract. Modern society is a diversified one, complex and various contract styles have emerged. Thus, one single theory cannot cover the volatile contract styles. Therefore, it is impossible to set up the modern contract theoretical structures with single theory. Wholly speaking, it's appropriate to interpret the effectiveness of contract after its establishment on the basis of will theory and statutory effectiveness theory and other theories as complement. During the period of establishment and validation of contract, rights and duties between parties are certain, only have not been enjoyed or assumed yet. At this time, they have much closer relationship than before the formation of the contract and they have more reasons to trust each other. If either party perfidiously tears up contract, refuses to go through validation formalities or disposes of subject matter of the contract arbitrarily, thus he can much more easily harm the interest of the other party. So, in this situation, the law shall provide relief to the victim. The manner of relief is to set up correspondent legal duties and liabilities in the form of law, thus can make the party assume liability for their not abided by the principle of honesty and good faith, also can safe guard the justice and order of market trade. There are very few stipulations on legal duties of prevalent period in our contract law, therefore ,leads to the phenomenon of no law to refer to in our judicial practice. The same is true in theoretical field, many scholars either have classified it into the period of contract formation just for granted or have neglected the existence of this period. However, there are four possibilities for this liability: negligence liability during the formation of contract, liability of breach of contract before the expiration date, liability of breach of contract or liability of tort, independent liability forms. Through the analysis to various invalidated contracts, we can draw up a conclusion: what kind of liability shall be assumed because of violation of binding force of invalidated contracts can not be lumped together. We can only determine the liability according to how far the invalidate contract is to the validated one. If the effectiveness of contract will happen inevitably or with great probability, the concerned party shall assume the liability of breach of contract. If there is slight possibility that the effectiveness of contract will happen, the party shall assume the negligence liability during formation of contract. If, before the validation of established contract, one party has found that the contract has been formed with the defects of a material mistake or grossly unconscious reasons, what relief measures shall he adopt? According to the prevalent theory, effectiveness have refers to the effectiveness after validation, thus during the period between establishment and validation, there is no possibility of cancellation. To solve this problem, we shall understand the "effectiveness" have in a broad sense, it not only include the effectiveness after establishment, but also include effectiveness after validation. In this situation, the parties can exercise their cancellation right during the period between establishment and validation so as to safeguard their own rights. Termination of contract is another relief measure, it means that after the effectively establishment of a contract, the contract relations are terminated retroactively or not retroactively. We must also adopt the concept of contract effectiveness in a broad sense, so the problem can be solved completely.The fourth part of this text has reviewed the system of traditional validity of the contract at first, pointed out the vacancy of legal provisions when the content of the established contract haven't violated the law and in accordance with the validity constitutive requirements ,either , and proposed the design of the system of validity of the contract on this basis. Most scholars in our country deem that contracts can be classified into the following categories: valid contract, invalid contract, contract whose effectiveness is to be determined, amendable or cancelable contract. And they think that contract whose effectiveness is to be determined and cancelable contract have two ultimate states. One state is that the contract contradicts the stipulations of the law, the contract is invalid. The other state is that the contract become valid through remedy of validation conditions. We shall notice that not every contract become valid once it is established. It may be invalid, or it may not become valid immediately, for example in contract with condition precedent, if the condition is not realized, the contract is not valid, its validation conditions are not satisfied, but their contents are not in violation of law. What kind of state is the contract in? It's neither invalid nor valid contract. It's not contract whose effectiveness is to be determined either, as if this condition cannot happen, its effectiveness is not possible to be realized. Now it is necessary to apply the concept of "the contract has not yet been validated" to determine this legal phenomenon. Thus, according to whether the effectiveness of contract has happened, we can classified contracts into three categories: valid contract, invalidated contract and invalid contract. At the same time, to put the statutory invalidated contract in the category of invalidated contract will improve the kinds of it, and make the contract system rich and perfect.