Study On The Effectiveness And Relief Of Non-fulfilling Entry-of-the-road Element Contract

Non-fulfilling entry-of-the-road element contract refers to the legal establishment and there are no revocable,invalid and other contract validity defects,only the parties agreed to the entry into force elements or the entry into force of the law has not been satisfied.Non-fulfilling entry-of-the-road element contract is the inevitable product of the separation of the contract establishment and the effective effect,but since its birth it has brought many difficult problems to the theoretical circle: What is the validity of this kind of contract? What obligations do the parties have in the contract? How does one party’s breach of obligation severity to the opposite party? Whether the contract negligence liability or breach of contract liability can be applied? Scholars have been arguing about these issues,and it is difficult to find answers in traditional theories.Nonfulfilling entry-of-the-road element contract not only caused a heated discussion,its effectiveness of identification and relief in the legislation and the judiciary into a double dilemma.On the one hand,the relevant legal provisions are scattered in different jurisdictions,the wording of the provisions is vague and even contradictory,affecting the traditional theory of contract law;On the other hand,when the judge deals with such contract disputes,because of the difference in interpretation caused a large number of different judgments in the same case.The People’s Civil Code(Draft of the People’s Republic of China),issued on 16 December 2019,still uses a conservative and vague formulation of the provisions on the validity and responsibilities of such contracts,with the intention of leaving room for discussion on relevant issues.This paper focuses on the two major problems of its effectiveness and relief,with the Non-fulfilling entry-of-the-road element contract.First of all,to recognize the reasons why the traditional theory causes the problem of the effectiveness of such contracts,and to make clear the valid and effective distinction is a breakthrough in determining the effectiveness under the existing contract effectiveness system,emphasizing that the evaluation of contract effectiveness comes from two dimensions: value evaluation and fact evaluation.Secondly,from two dimensions,it is determined that the contract which has not met the effective elements of the contract is valid in the legal evaluation and the contract which is not in effect in the evaluation of fact,combined with the hierarchical theory of the binding force of the contract,it is concluded that the contract which does not meet the effective elements has legal restraint and no substantive binding force,and this kind of contract has produced some obligations,and no obligation to pay.Finally,the corresponding relief is constructed on the basis of clarifying the validity of the contract which has not met the effective elements.On the one hand,taking liability relief as the main principle,choosing the remedy mode of breach of contract liability,discussing the specific application of the two forms of liability for continued performance and compensation for loss,and clarifying the principle of continuing to perform and only compensation for actual losses in such contract disputes;On the other hand,it emphasizes the relief significance of the right of defending contract performance and the system of contract cancellation to the Non-fulfilling entry-of-the-road element contract,and further analyzes the specific application of the two systems in this kind of contract,and tries to form diversified relief.