On The Legal Issues Of Unapproved Contracts

With the promulgations of Law Interpretation [1999]19,the validity nature and liability bearing of unapproved contracts have become a hot topic for scholars to discuss.The Civil Code further defines the validity of contracts before the completion of administrative examination and approval as not effective.At present,scholars have no objection on the application level of the concept of non-effectiveness,but the discussion on the status of non-effectiveness in the legal act effectiveness system is still in a blank state.The study of non-effective contract system is helpful to clarify the relationship between non-effective and other forms of effect,build a complete legal act effect system,and realize the value balance in the process of public law control.Because the civil code has not formed corresponding rules for the non-effective contract from the perspective of the systematization of the code,there are many difficulties in the theoretical interpretation and standard application of the non-effective contract system.The logical premise of studying the system of non-effective contract is to examine the existing predicament of the system of non-effective contract,which mainly has the unclear status of the legal act validity system,unclear definition and division of administrative approval as the condition of the contract validity,unclear nature of the responsibility for violating the obligation to submit for approval and the content of the responsibility.How administrative examination and approval affects the validity of contract has always been the focus of theoretical research and even legislative and judicial practice.The scope of administrative examination and approval that affects the validity of contract lies in the two aspects of determining the standard basis and specific types.In terms of determining the standard basis for administrative examination and approval,the administrative examination and approval outside laws and administrative regulations has the hidden danger of being contrary to the upper law.When necessary,the value supplement of judicial organs is taken as the basis.In terms of determining the specific types of administrative examination and approval,the nature of administrative examination and approval should be administrative license,which is further divided into administrative sanction and license formed by private law,among which "license" which does not directly affect the validity of contract should not be taken as the basis of affecting the validity of contract.Scholars proposed two approaches of applying the classification principle to distinguish basic behavior approval and performance behavior approval.It is further divided into administrative license examination and approval and non-administrative license examination and approval,and non-administrative license examination and approval should not be used as the basis for affecting the effectiveness of legal acts.There is no doubt that the administrative act in public law has the effect of affecting the formation of the relationship between private laws,so as to determine the scope of administrative examination and approval that affects the validity of contracts and meet the systematization demand of non-effective contracts.Before the promulgation of the Civil Code,there are three points of view in theory: liability for breach of contract,liability for contracting negligence and conflation of the two.Article 502 of the Civil Code has absorbed the stipulation that the approval obligation and the breach of contract clauses come into effect independently,which is worthy of affirmation and should exclude the application space of the liability for contracting negligence.However,due to the ambiguity of the nature and content of the liability in the law,this vague provision leads to a great dispute over the application of the uneffective contract in judicial practice.Therefore,on the basis of the legitimacy of applying the liability for breach of contract when the obligation to submit for approval is violated,the specific content of the liability for breach of contract is sorted out,which can provide theoretical support for the correct application of the invalid contract.Scholars also have different views on whether statutory termination can be applied to non-effective contracts.This paper further discusses the selectivity and order of the application of continued performance and contract termination when the parties bear the liability for breach of contract,as well as the different legal consequences.