중국 법제상 계약의 효력요건에 관한 법리

Abstract

In the past there had been utterly ignorant of the distinction between the elements of formation of contracts and the elements of effectiveness of contracts until 1999 the Chinese Contract Law set up the distinction with its Chapter 2 Formation of contracts and Chapter 3 Validity of Contracts. The Article 44 “A lawfully formed contract becomes effective upon its formation” has also drawn a clear distinction between the elements of establishment of contracts and the elements of effectiveness of contracts. The benefit of the distinction is as in the following. First, it is possible to distinguish the failure of contracts and the invalid contracts. Second, the classification of the concept of the formation of contracts and the concept of the effectiveness of contracts can settle the dispute definitely. Third, when the contents of contracts are indefinite or defective, the rigorous distinction can be help to settle the problems. Forth, it is profitable to take recognition of the character of contracts. The Article 55 of General Principles of the Civil Law of the People's Republic of China sets up the substantive elements of the civil juristic act as “A civil juristic act shall meet the following requirements : (1) the actor has relevant capacity for civil conduct : (2) the intention expressed is genuine : and (3) the act does not violate the law or the public interest.”From this article, a citizen aged 18 or over or a citizen who has reached the age of 16 but not the age of 18 and whose main source of income is his own labor shall be regarded as a person with full capacity for the conclusion of contracts. Juristic person and other organizations also have full capacity for the conclusion of contracts. And the expression of the party must be in agreement with his meaning. When the expression and the meaning are inconsistent, it will result in the problem such as false expression or mistake of expression. Finally, the contents of contracts can not violate the law or administrative regulations, and can not violate the national interest or the public interest. In addition, as the uncertain effectiveness contract the elements of effectiveness of contracts are defective, there are contract by person with limited capacity, unauthorized agency contract, and unauthorized disposition contract.