Study Of The Legal Liability For Breach Of The Obligation To Report

Unlike ordinary civil contracts,contracts subject to administrative approval do not take effect at the same time as they do when they are formed,and they cannot take effect between the parties to the contract until they have been approved by the competent authority.In the absence of the special elements of the contract-administrative approval and in the state of the establishment has not come into effect,according to the part of the terms of entry into force said,the approval of the provisions of the independent effect,for the parties to resolve the administrative approval of the contract dispute to provide guidance,but the problem is,the approval of the obligor does not perform the obligation or the performance of the obligation does not comply with the agreement when what liability,how to define the scope of compensation and can be applied to continue to perform and other ways The core of this difference is the correct understanding of Article 502(2)of the Civil Code,"liability for breach of that obligation".This article is divided into four parts to further analyse this issue:The first part focuses on the origins of the obligation to submit an approval,i.e.the theoretical basis of administrative approval contracts and the obligation to submit an approval.An administrative approval contract is a contract entered into by a civil subject in accordance with the provisions of laws and administrative regulations,which must be examined and approved by the competent administrative department before it can take effect.The essence of administrative approval is administrative permission,and the obligation of the parties to perform the approval procedure according to the law or the agreement of the parties is the obligation to submit the approval,and the contract effect of the breach of the obligation to submit the approval should adopt the independent effect of the obligation to submit the approval.The second part is the adjudication practice and legislative trend of administrative approval contract disputes.From the viewpoint of adjudication practice,the previous adjudication position of contractual negligence liability theory has the disadvantages of a single remedy,confusing theoretical interpretation and condoning opportunism;from the viewpoint of legislative trends,the current judicial practice of the gradual reduction in the type of adjudication,the trend of the demise of administrative approval contracts and the practical needs of the transitional period of institutional arrangements from strengthening control to gradual unbundling require legal and judicial decisions and legislative interpretation The third part is a review of the current legal and judicial decisions and legislative interpretations,and the need to clarify the forms of liability and increase the protection of applicants for approval.In the third part,the author has sorted out the controversies relating to the breach of the obligation to report.The controversy mainly includes the dispute over the nature of the obligation to submit the approval,i.e.whether the obligation to submit the approval is a contractual obligation or a pre-contractual obligation,whether it is an obligation to pay or an incidental obligation,which,in my opinion,is a contractual obligation and an obligation to pay,and the adoption of the pre-contractual obligation theory has also given rise to many theoretical disputes.In terms of the form of liability,whether continuing performance can be applied,and how to determine the scope of compensation for breach of the obligation to report,the author believes that the first contractual obligation theory obviously cannot solve the above problems.In the fourth part,the above controversies are discussed and the idea of optimising the liability for breach of the obligation to report is proposed.The author believes that the breach of the obligation to submit an approval should be liable for breach of contract,based on the independence of the obligation to submit an approval clause,the breach of contract liability theory is more realistic and in line with the needs of the judges;in terms of the mode of liability,the breach of the approval clause can be used to promote the entry into force of the contract by way of continued performance,emphasising the protection of the parties’ performance interests,and the scope of compensation should include actual losses and available benefits.