| 彭熙海,贾韶琦.审视合同生效规则——以民法典编纂为主要视角[J].,2016,17(1):89-94 |
| 审视合同生效规则——以民法典编纂为主要视角 |
| The Inspection of Rules for the Effect of Contract |
| 投稿时间：2015-10-16 |
| DOI： |
| 中文关键词: 合同生效 未生效合同 法定申请义务 即时履行 |
| English Keywords:validation of contract ineffective contract statutory application obligation immediate performance |
| Fund Project: |
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| 中文摘要: |
| 有别于传统合同效力理论,合同效力并非始发生于合同的生效,合同成立亦发生法律约束力。《合同法》第44条第2款与第52条第5项同为引致条款,当事人对前者的违反属于后者规范之情形,为其所包容评价；两相比较,后者在规范目的达成与功能实现上有过之而无不及,足可取而代之。法定申请义务的独立性成为突破“未经审批合同不生效,合同不生效则无从履行报批义务”恶性循环的关键所在。附延缓条件、始期合同中,合同具备履行效力,不代表一定要即时履行,也不因当事人约定不即时履行而消灭。当事人约定的延缓条件或始期无法决定合同产生履行效力与否,其合意的真实目的在于合法规避因自身不即时履行合同义务所引致的法律责任。 |
| English Summary: |
| Different from traditional contract effectiveness theory, contract now does not take effect upon the validation of the contract, but becomes legally binding while being established. Both paragraph 2 of Article 44 and Item 5 of Article 52 specified in Contract Law of the People’s Republic of China are the induced clauses; the violation of the former is prescribed by the latter as the inclusive evaluation; by comparison, the latter is far superior to the former in terms of standardizing goal attainment and function achievement, and therefore is sufficient to replace the former. The independence of statutory application obligation has become the key to solving the vicious cycle-“the contract shall not come into force until being approved and the obligation of the submission for approval will not be performed if the contract does not take effect”. In the contract with suspensive conditions and beginning period, contract performance does not mean the requirement for immediate performance, and its effect will not vanish as the parties involved reach an agreement on the non-immediate performance. The suspensive conditions or beginning period agreed by the parties involved cannot decide the effect of contract performance, and their true intention is to legally evade the legal responsibilities arising from the non-immediate performance of contractual obligations. |
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