Studies on Issues of the General Principles of ContractLaw
郑云瑞
【全文】
In the past 30 years the economic and legal systemsin China have undergone momentous changes. In concomitance with economicdevelopments, the contract law experienced a process of gradual developmentfrom the three formercontract lawsin the 1980s to the unified contract lawat the end of the 20th century. The newly promulgated contract law hasabsorbed successful legislative experiences and reflected international trendsand developments in contract law. It unifies trade regulations, ensures tradesecurity , encourages commerce and attempts to satisfy the development needs ofthe market economy to the maximum extent.
Preface
32 years after the establishment of the PRC, we promulgatedthe first contract law: The Economic Contract law of the People’s Republic ofChina (hereinafter referred to as “Economic Contract Law”).
efore this event, it is not that contract law did not exist in China as it appeared in the form of custom andadministrative regulations.
he Foreign Economic Contract Law of the People’s Republic of China(hereinafter referred to as “Foreign Economic Contract Law”)
nd the Technology Contract Law of the People’s Republic of China (hereinafterreferred to as “Technology Contract Law”)
ere successively promulgated after the promulgation of the Economic ContractLaw. During the times of economic transformation, thosethree formercontract law
ad great effect in protecting interests of parties concerned, maintainingorder in commerce and developing the market economy. However, after entering intothe 1990s, the three formercontract law could no longer adapt to the need forlegal reforms as required by social life. With the penetration of reforms, opendoor policy and the establishment of the market economy system, there weredemands for the market transaction regulations to be unified, legal regulationsand old civil law theories that reflected essential and special traits of thecommand economy system were neededto be abolished, common regulations reflecting the objective principles of themodern market economy are to be adopted, We have learned from thethe successful legislative experience,case law and theories of developedcountries and areas t. This is so that in the premise of giving considerationto economic efficiency as with social justice, and trade security as withtransactional convenience , fulfil theunification, modernization, and as far as possible, the operatability of thelaw of contract. Nineteenyears after the promulgation of the first contractlaw, China promulgated the Contract Law of the People’s Republic of China(hereinafter referred to as “Contract Law”) on the 15th of March,1999, which took effect on the 1st of Octoberin the same year.
part from this, in order to assist all levels of courts in understandingand applying the Contract Law, theSupreme People’s Court promulgated the Construction of Certain IssuesConcerning the Application of The Contract Law of the People''s Republic ofChina (One) (hereinafter referred to as “Construction of Contract Law”).
his article undertakes a preliminary comparative analysis on three aspects ofthe general principles of Contract’s Law.
I. Takingeffect of Contracts
The contract system of the formation of the contractand the contract system of the taking effect of the contract are closelyrelated. The formation of the contractrefers to the meeting of minds.
rom looking at the manner of the formation of the contract, the mode of a contract’sformation is via offer and acceptance.
o matter what specific form the formation of the contract takes, it needs toundergo the two stages of offer and acceptance. This is the basic procedure forcontract formation and it is also the general modus operandi for internationalcontract formation. In fact, the process of offer and acceptance is the processof the meeting of minds of the contracting parties. The conclusion of theprocess of offer and acceptance indicates the unanimous accord of the interestsof the parties, thus declaring the formation of the contract. Before thepromulgation of the Contract Law, China’s civil law, three former contract law,and relevant contract laws and administrative regulations, lack the stipulatedrequirement of offer and acceptance. Under many situations, the lack of asystem of offer and acceptance results in difficulty of determining whether ornot the contract is formed, and may cause an originally formed contract to beadjudged as not formed. The requirement in contract law of the system of offerand acceptance may result in a more concrete standard in contract formation.Not only will this result in contractual parties engaged in commerce havingremedies to resort to, but also result in the courts having definite and clearestablished principles when dealing with contractual disputes, having betterdemarcation of the parties’ responsibilities, correctly judging the contract’sformation, sufficiently safeguarding the party rights, encouraging commerce,and promoting economic development. Therefore, offer and acceptance are of vastsignificance in the formation of the contract.
The taking effect of thecontract refers to an already formed contract producing a binding force in lawbetween the parties. The taking effect of the contract refers to theaffirmative evaluation of the already formed contract by the national law.The formation of the contract is aquestion of fact and is a matter between the contracting parties, however, thetaking effect of the contract involves value judgments. Whether or not acontract takes effect not only depends on whether the expressed intentions werecommon and true, but it also depends on whether or not the parties possess thecorresponding civil capacities, whether or not the contract’s conduct orcontent harms third parties, state, or public interests, and whether or not theform of the contract corresponds to the mandatory provisions in law.
The difference between theformation of the contract and the taking effect of the contract is not clearlyexpressed in the Economic Contract Law. Similarly, in the General Principles ofthe Civil Code and the Foreign Economic Contract Law, it is also in an obscureand vague state. An example is that besides Article 6 of the Economic ContractLaw which regulates that “economic contracts formed in accordance to theoperation of law possess binding force in law”, no other provisions refer tothe question of the taking effect of the contract. Hereon, the question of thetaking effect of the contract is concealed. However, after looking at Article62 of the Civil Code which states, “Conditional civil juristic acts come intoeffect when it conforms to the conditions”, the difference between formationand taking effect starts to show in civil juristic acts. Nevertheless, whetherit is due to the insufficiency of theoretical proof or due to a mistake inlegislative technique, this important problem merely shows up preliminarily inthe general principles of civil law and the demarcation of boundaries has notbeen further clarified. Therefore, this caused some contract laws to defineapproval from authorities as an essential element in the formation of acontract, while others define the abovementioned approval as one of theessential conditions in the taking effect of a contract. This contradiction andconflict between different contract laws is scarcely unexpected.
Not only does this problemexist in China’s contract legislation, it also causes a great deal of confusionin judicial practice and jurisprudential study. “The contract law academehas more emphasis on the study of thetaking effect of a contract all the time; however it neglects the study of theformation of a contract.Some civiltreatises mix the issues of a contract’s formation with taking effect, andquite a number of treatises just equate the essential conditions of the takingeffect of the contract with that of the formation of the contract. With suchinterconnectedness, judgements of contracts being ineffective can be foundeverywhere in the judicial practice, while examples on judgments of a contractnot being formed are extremely rare.
According to civil lawtheory, the essential conditions of the taking effect of a juristic act referto “juristic acts that are already established, essential matters that makesthe abovementioned acts completed effectively”.
he essential conditions of the taking effect of a contract can be divided intonormal conditions and special conditions. The former can be applicable tovarious juristic acts, the latter is only applicable to certain specialjuristic acts. The contents of the normal conditions for taking effect includefour main areas:
1)The parties should possess the corresponding legalcapacity and capacity to act when concluding a contract;
2)The expressed intentions of the parties are true;
