Studies On Effectiveness Of Unauthorized Disposition Contract

In recent years, about our theoretical studies on the effect of the unauthorized disposition, effect depending rule which the "Contract Law" Article 51 has established has almost convinced all the theoretical researchers. Indeed, "effect depending theory" has its own advantages, such as the flexibility to put unauthorized disposition contract into nullity when the person have no right, and let people get the ownership of the subject matter of when ratified by the owner. However, since the original "Contract Law" makers did not foresee the rapid development of the new commodity exchange transactions, especially when the "future property sales contracts" and the "restricted disposition of property owners’ actions" situations occur. In these cases, unauthorized dispose of the contract should be given effect when people can get the disposition right, because compared to sanction a breach of good faith principle lead to unauthorized disposition contract is invalid and should bear contracting negligence, breach of contract is clearly more conducive to protecting the interests of the relative disposition of people, which also maintains a trading order.As a consequence, the Supreme Court’s "explain the sale and purchase contract issue"(Law Interpretation No. [2012] 7) Article clearly enforce that the people’s court support the responsibility for breach of unauthorized disposition contract, thus recognizing the effectiveness of unauthorized disposition contract. Since the problem of how to apply "Contract Law" provisions and the Supreme Court’s "explain the sale and purchase contract issue" requirement of the process. Some scholars advocate the relevant provisions of the "Contract Law" and the "sales contract interpretation" third respectively in parallel for different situations right disposition range, however, this treatment will result in most cases to apply the right disposition "for the sale explain the effectiveness of particular rules, " as determined by Article III, as a general rule applicable to " contract Law " Article 51 applies only to a small range which is a strange phenomenon. Furthermore, this argument is not in the legal logic penetrating.This article first defines the concepts about unauthorized disposition contract, clearly defining the connotation can make logical arguments clearly; property changes the in civil law model is closely related to unauthorized disposition contract; the process of the legislative practice in unauthorized disposition were analyzed to introduce changes about the attitude; Finally, the theories about the validity of the contract are introduced and analyzed on the basis of weighing the pros and cons of each theory.