[information]
Authors: He Bo BeijingA tribunal court people
Price: 68 yuan
ISBN: 978-7-5118-0864-6  
Publication date: 2010 August
[content abstract]
Explain the basic tenets of difficult caseJudicialPolicy summary judgment method of civil and commercial trial field is closely related to economic lifeTheLawHot area. The development of economy, the market main body diversity, leading to new forms of transactions and transaction methods continue to emerge, all kinds of transactions very active. This also led toCourtVarious types of civil and commercial disputes is increasing, various of new types of cases, difficult, complex problems.
This book is the high court of BeijingJudgeFor the extraction of various types of civil and commercial trial method and summarized, the content has the originality, the judge,LawyerFor civil and commercial disputes has a strong guiding significance.

Catalog

The first chapter of contract article /
The first trial contract litigation judgment method /
First, the correct understanding of China's "contract law" with the goal of encouraging transaction between /
The qualification of the two, about the validity of the contract /
Two kinds of measures, debt security system / three
Four, on the right for liquidated damages issue /
The main problems occurred in five, enterprise restructuring disputes /
Six, about the identification of quality discrepancy period /
To fulfill the contract relativity seven, with third people /
Case analysis of second typical difficult contract dispute /
One case: that contract quality objection period and sale by trial andResponsibilityBear
-- Sanfeng Machinery Factory Co. Ltd. and Beijing guangzeng Packing Products Co., Ltd. sales contracts dispute appeal /
Case two: in the exemption of debt assumption the debtor does not undertake the responsibility
--ChinaMachine tool company with Beijing peony garden apartment Co. Ltd., Beijing Claes furniture mall import agent contract dispute appeal /
Case three: determine the effect of Finance leaseback lease contract
-- Newcourt Leasing Co. Ltd. and Beijing Palembang socks Co. Ltd., Beijing finance leaseback must trade development limited liability company lease contract dispute appeal /
Case four: Legal Problems of exercising subrogation Air China financial companies involved
-- Air China Group Finance Co. Ltd. and Beijing YONGYING building real estate Co., China Huacheng Group Finance Co. Ltd. subrogation dispute appeal /
Case five: transfer torch ocean company can be revoked problem
-- Chinese Construction Sixth Engineering Bureau of the fourth construction engineering company withThe city of BeijingJu Yang economic technology development company, revocation of the right to dispute appeal /
Case six: one of the parties to exercise the cancellation right should be limited
-- Beijing leader investment management limited liability company because of equity and Shanghai posway Investment Co., Ltd., Shanghai Oriental City auto parts limited to transfer the dispute of the contract /
Case seven: if liquidated damages can get the support of the court
-- Beijing Jinhaihu Yuyang International Ski Co. Ltd. and Beijing Wanlong Aoxue Sports Goods Co., Ltd. sales contracts dispute appeal /
Case eight: after the cancellation of the contract of foreign trade company commissioned by the unauthorized possession client funds
-- the Benxi iron and steel (Group) Co. Ltd, Benxi Iron and Steel Group International Trade Co., Ltd. with the appellee Chinese machinery foreign economic and Technical Cooperation Corporation, the Dongyuan import and Export Corporation
Contract dispute case /
Case nine: Legal Problems of foreign trade agency contract dispute case
-- wide Telecom Co. Ltd. with the instrument and equipment import and export agency contract dispute appeal /
The second chapter text / guarantee
The first trial guarantee case judging method /
One, about the "guarantee law" principle and meaning /
Two, "property law", "guarantee law", "guarantee law to explain the applicable law" between the problem of convergence /
Three, about theCountryAuthorities shall not act as guarantors of the problem /
Four, the general guarantor plea, restrictions on the exercise of the problem /
Five, to ensure the legal consequences of the expiration of the time period /
Six, the warranty period, the court's acceptance of the debtor bankruptcy cases, the creditor can request to declare the creditor's rights and guarantee responsibility fulfil /
Seven, about theBankThe independence of the counter guarantee /
The implementation of eight, life insurance and property insurance coexistingRule/
Case analysis of second typical difficult guarantee contract disputes /
Case 1: Contrary to guarantee that the real meaning of the guarantee contract, the guarantor shall not bear the liability of guarantee
-- China Railway sixteen Bureau Group Beijing railTrafficConstruction company withHebeiBased real estate development company limited, Hebei province Acer International Trade Co. Ltd., Luquan Qu Zhai Logistics Co.
Company, Hebei province Acer Machinery Construction Co Ltd, Wu Guohong that the dispute of the contract /
Case two: the guarantor assumes the bankruptcy creditor's rights guarantee liability shall be limited within the scope of the claims in bankruptcy
-- China Huarong Asset Management Co Beijing office for detection and Beijing Daxing automobile field guarantee contract dispute appeal /
Case three: the creditor to demand that the debtor becomes a major difficulty for the debt, may require the general guarantee
-- Beijing Beijing's real estate development company and CITIC Industrial bank guarantee contract dispute appeal /
Case four: A Study on the legal issues of the hypothecated deposit certificate
-- Chinese electronic leasing company with China foreign economic and trade Trust Investment Company pledges dispute appeal /
Case five: the same debt both PICC also liquidation order issues
China -- Foreign Economic and Trade Trust & Investment Co. Ltd. and Beijing Tongcheng Jinhai Real Estate Development Co. Ltd., Changsha Dolton Industrial (Group) Limited loan contract disputes appeal /
Case six: Research on legal issues related to trade contract
-- Beijing Hualian Department Store Co. Ltd. and Beijing branch of Bank of communications, Hainan Nanguang import and Export Corporation under the letter of credit financing contract dispute appeal /
Case seven: the guarantee enterprise with foreign investment quality assets to assume responsibility for security issues
China garment Limited by Share Ltd -- with Zhejiang Industrial Bank Hongkong branch the guarantee contract dispute /
Case eight: the independent guarantee business client fails to submit the documents meet the letter of guarantee shall not have the right to claim for performance requirements of the security reduction obligations
The Export Import Bank of China -- with Shenzhen City dawn Information Technology Co. Ltd., Shenzhen Diantong data limited appeal other guarantee contract dispute /
The third chapter, article /
The first trial cases judging method /
The basic situation, Beijing City Court, disputes and /
Problems in two, Beijing City Court corporate disputes /
Basic measures and countermeasures, solve the problem / three
Four, corporate disputes related to the trialSuggestions/
Case analysis of second typical difficult company dispute /
One case: the validity of contract of guarantee the legal representative of the company signed the ultra vires
-- the China Building Materials Group Import & Export Company and the Jiangsu Yinda Technology Co Ltd Guarantee Contract Appeals /
Case two: the legal issues involved in the acquisition of shareholder capital contribution and the shareholder qualification
-- Shenzhen City Construction Development (Group) Company and the National Tourism Administration of the people's Republic of China, Chinese Tourism International Trust and Investment Co. Ltd. infringement dispute appeal /
Case three: should correctly identified the relative nature of the contract in the process of equity transfer
-- China Yintai investment company with shares of Beijing spring flag industry Co. Ltd. transfer dispute appeal /
Case four: legal means of solving corporate deadlock
-- Beijing Chinese entrepreneurs and real estate development company limited by shares and Beijing Bangtai industrial investment group limited transfer contract dispute appeal /
The fourth chapter foreign articles /
The first trial of letter of credit litigation judgment method /
A letter of credit, "the provisions of a number of issues" after the implementation of Beijing City Court credit case the basic situation and characteristics of /
Two, Beijing city court hearing problems in credit dispute case /
Basic measures and countermeasures, solve the problem / three
Recommendations four, case / trial of letter of credit
Analysis of second typical difficult foreign-related contract disputes case /
One case: in the case of credit issuing bank without the safekeeping of documents or single step shall be deemed to have accepted the documents
-- Italy credit bank for appeal of Harbin economic and Technological Development Zone Foreign Economical Trading Co settlement of letters of credit disputes /
Case two: the foreign applicant approved applicants and quality of the goods entrusted to foreign accreditation bodies identified as substandard quality does not constitute a fraud on letter of credit
-- Beijing Xuanlian Food Co. v., Woori Bank, Chinese bank Limited by Share Ltd Beijing branch credit dispute appeal /
Case three: the mainland and Hongkong mutual recognition and enforcement of civil and commercial mattersSentenceThe legal issues involved
-- Japan pipe center with Beijing Zhuangsheng real estate development company limited sale contract dispute appeal /
The fifth chapter text / other
The first trial of criminal and civil litigation judgment method / cross
A study of cross cases, criminal and civil procedure and evaluation /
Two, the Beijing court in penal and civil cases in question /
Basic measures and countermeasures, solve the problem / three
Recommendations four, the trial of civil and criminal cases / cross
Analysis of second cases of typical cross section of difficult criminal and civil cases /
Case: Booties recovery cannot replace civil claims
-- Shenzhen Zhixin Industrial Development Co., Ltd. and Beijing Xiangyu Spatial Technology Inc agent import contract dispute case / appeal

A festival The method of trial contract litigation

The people's Republic of China October 1, 1999 implementation of the "contract law" (hereinafter referred to as the "contract law"), not only has the significant influence on the protection of rights and interests of the parties, but also has a far-reaching significance for the healthy development of the market economy of our country. The Supreme People's court to summarize characteristics of contract litigation "contract law" since the implementation of the people's courts at all levels, research in the application of "contract law" hearing relevant cases problems, in December 29, 1999 issued a "interpretation of the Supreme People's Court on the application of 'issues' Contract Law of the people's Republic of China (a)" (1999) (Interpretation No. 19) (hereinafter referred to as the "contract law", (a)) on April 24, 2009 issued the interpretation of the Supreme People's court "on the application of' issues' contract law of the people's Republic of China" (two) (Interpretation (2009) No. 5) (hereinafter referred to as "the contract method (two)"). This is a court in the trial of cases of disputes over various types of contracts, the correct application of "contract law" and the judicial interpretation to resolve contract disputes, real and promote the smooth progress of the transaction has played a positive role. But in the practice of law, there are still some problems. Therefore, this book to difficult questions on some disputes of contract analysis, in order to further improve the court contract dispute cases the law applicable to the accuracy and quality of the trial.

First, the correct understanding of China's "contract law" with the goal of encouraging transaction between
Contract law should take the autonomy and freedom of contract parties as its basic principles, but in the "contract law" before the implementation, many law not only failed to encourage trade, but restrict the trading activity in some extent. This is mainly manifested in: on the one hand, the "contract law" the provisions of previous law invalid contract too broad scope of implementation. Such as "general principles of civil law" article fifty-eighth of invalid civil behavior are too wide, especially through fraud, coercion, and other means to force the other party's civil behavior in violation of the true will of the circumstances, will be regarded as invalid civil behavior. But will these untrue declaration of will contract as invalid contract and not as a revocable contract to handle, in fact not appropriately expanded the scope of application of invalid contract. On the other hand, many courts held that as long as the contract does not have the main provisions of the law, should be declared invalid, which caused an invalid contract in practice very broad phenomenon. In addition, according to the provisions of the original "economic contract law" twenty-sixth, "due to the other party fails to perform the contract within the time limit stipulated in the contract, the non breaching party shall have the right to notify the other party is entitled to terminate the contract". That is to say, as long as agreed in the contract period to the debtor fails to perform the contract, regardless of whether this fails to cause serious consequences, the creditors may rescind the contract. This article makes no restrictions on the exercise caused by breach of contract rescission, is actually allows a party in the delay of performance, the other party may free exercise of the right of cancellation. In the trial practice, many court accordingly as long as one party breaches the contract, whether minor breach and fundamental breach can announce the termination of the contract, so that many should not be rescinded the contract was lifted. This book tries to analyse the "contract law" that encourage trade spirit, specifically manifested in the following aspects:

(a) to strictly limit the scope of the void contract
   On the essence of the void contract, an invalid contract is illegal. It is because of an invalid contract does not conform to the will of the state, therefore, the invalid contract is certainly invalid. Even if the parties do not claim is invalid, the state must intervene on invalid contract. Therefore, the scope of the void contract, should be limited in violation of the law prohibiting sexual and public order and good customs. As a fraud, stress due to one party or one contract, despite the illegality has to a certain extent, but mostly untrue declaration of will, from the point of view of respecting the interests of victims and to maintain the transaction security, such as the contract voidable contract approach, proposed revocation request the victim himself. If the victim is not willing to propose the cancellation request, then the law should respect the victim's meaning, without intervention. As a subject of natural person is not qualified for the contract (such as incompetent behavior contract), or agents have no right to an unauthorized agency contract, are not of course is invalid, and exist in a subsequent ratification problems or my guardian. If they are to be ratified, then the contract is still valid. Visible, the contract should belong to the validity of the contract, and shall not belong to the category of the contract invalid. The scope and restrictions of the contract, to reduce the invalid contract, contract or has the effect to some.
(two) should identify the characteristics and extent revocable contract
   Voidable contract is untrue declaration of will contract, according to the nature of the contract, enjoy the right of revocation if a party does not ask the revocation of the contract, the contract is still valid. In particular, it should be noted that, due to the revocation of the contract and the change is linked together, if the parties only to change the contract without the revocation of the contract, the court can not cancel the contract; but even if the parties claim to rescind the contract, if the change in the terms of the contract to protect the injured party's interests, and not in violation of laws and social public interests, the court also should as far as possible while maintaining the validity of the contract under the terms of the contract, change. This is conducive to encourage trade, and reduce the revocation of the contract, the return of property loss and waste.
(three) into effect strict distinction between contract establishment and contract
   In the trial practice, many courts will some has been established but does not have the conditions for the entry into force of the contract, as invalid contract treatment, leading to a large number of could contract become null and void the contract. In fact, effective contract establishment and contract is the essential difference. The establishment of the contract refers to the contract, the parties through equal consultation, the basic content of the contract agreement, marking the end between the two sides of the offer, promise. Su Huixiang: "on with the entry into force of contract", "the science of law" contained in 1990 second. However, after the establishment of the contract is not certainly effective, has set up a contract to produce the effect, depends on the state of the contract already established attitudes and evaluation. Therefore, the establishment of the contract system mainly embodies the will of the parties, embodies the principle of freedom of contract; and the entry into force of the contract system is reflected in the evaluation of contract relationship is positive or negative, reflecting the state intervention in the contract relationship. Chen An editor: "theory and practice of" foreign economic contract, China University of Political Science and Law press, 1994 edition, page 103rd. If there are omissions or not clear the main clauses of the contract the parties to a contract, the parties and are willing to accept the contract binding, in this case, the court shall be allowed by the method of contract interpretation, based on the true meaning of the principle of honesty and credit to the parties, or the use of some supplementary provisions of laws, to determine the time of performance, place, the price terms, so as to improve the contents of the contract, and should not simply declared invalid, not appropriate to eliminate some transactions. Of course, the prohibition of deliberate violation of law and public order and good customs of the contract, not by the method of contract interpretation to make it effective, but must be declared invalid.
(four) should be clearly stipulated in the contract interpretation system
   The so-called contract interpretation, is refers to the court or arbitration organs, according to the functions and powers of the accurate meaning of contract provisions or text for explanation. Explain the aim to make some unclear or not specific content of the contract to be clear and specific, so that the parties to settle the dispute. In practice, because of the lack of the knowledge of contract law, trading experience and other reasons, some terms are not clear or not all problems may make a contract, and thus produce a variety of disputes. Due to China's current contract law does not provide the contract interpretation system, therefore, in practice, the court for such problems often according to the contract to handle, so many transactions are forced to destroy. In the trial practice, should fully respect the will of the parties and interests, allows the judge slightly lack or not clear on some of the provisions of the contract interpretation. The judge in the contract can be interpreted as effective, can also be interpreted as invalid situation, should be interpreted as the effective. Wang Liming: "the goal of contract law and to encourage trading", "law of load" in 1996 third. This not only on the discretion of the judge is the appropriate limits, but also fully embodies the spirit of encouraging transaction and the parties to respect the principle of will.
   (five) should be strictly limited contract conditions for the lifting of the
   Lift from the essence is to destroy a deal, in many cases, if the non breaching party willing to accept the contract breach after the implementation of the contract; or to continue to perform, and continue to perform in the non defaulting party have no adverse, once the breach of contract that is declared the termination of the contract, which is not conducive to the protection of the interests of the non breaching party, also does not reflect the law of contract to encourage trading purpose. So, for the breach of contract occurs the termination of the contract, the law must make clear limits. In the trial practice, should hold only in case of fundamental breach of contract. The so-called fundamental breach of contract, also known as a major breach of contract, refers to a party breaches the contract, the parties shall conclude a contract seriously affect the expected economic benefits. The original "foreign economic contract law" twenty-ninth stipulates: "any of the following circumstances, a party shall have the right to notify the other party is entitled to terminate the contract, the other party: a breach of contract, resulting in a serious impact to contract the expected economic benefits; two, the other party fails to fulfill the contract agreed in the contract period, in the the reasonable period of time allowed for delayed performance has failed to perform within ; three, not a force majeure event all obligations cannot, the contract; four, the contract agreed cancelling the contract conditions.".
   For fundamental breach of contract, the non breaching party shall have the right to terminate the contract. The system of fundamental breach of contract is the starting point: due to breach the consequences (including damage) is serious, the non breaching party to enter into a contract can not achieve the purpose, the existence of the contract party is no longer meaningful for non defaulted, the contract even after can be observed, but the non breaching party to still can not be achieved, therefore, should allow the non defaulting party announced the termination of the contract, so as to escape from the has been a serious breach of contract. Limits of the contract for breach of contract, to encourage trade, and to avoid for breach of lifting property loss and waste.
(six) the form elements as an evidence of the contract of existing standards
   The form elements as an evidence of the contract of existing standards, rather than as elements of the contract is established to determine. For the formal elements of the contract role, a kind of viewpoint thinks, if the parties do not enter into a written contract, the contract can not be established and effective. But it is worth noting, in modern market, many parties in order to pursue the business simple, extensive use of telephone, e-mail and other forms of contract, if all that such contract is invalid, be to trading activities inconvenience. In addition, the parties are for various reasons fails to conclude a written contract, but the parties have fulfilled the contract in whole or in part, or failed to fulfill the contract but the parties to contract exists and the main clause does not dispute. If the contract as invalid contract, will eliminate some should not eliminate transaction. Therefore, if the parties do not conclude a contract in written form, the contract can not be established and effective point of view, is conducive to the parties conclude a contract in written form, reduce some unnecessary disputes, but because of the strict requirements of the parties must conclude a contract in written form, will make many can set up the transaction cannot be established, cannot reflect the encourage trade principle. In the trial practice, starting from the need to encourage trade, should adopt written form mainly has the effect of evidence point of view. That is to say, in addition to those must be outside the registration, approval of the contract, the general contract, in principle requires the parties as far as possible to use written form, but if the parties do not use the written form, by the main problems in terms of the contract and the contract of the existence proof: if the parties cannot proof, the contract should be declared not established; if the parties to the burden of proof, it can determine the contract is established and effective. Wang Liming: "the goal of contract law and to encourage trading", "law of load" in 1996 third.
Visible, the judge in the trial process, should be to encourage trading as the object and purpose of the contract law. But the emphasis on encouraging transaction importance at the same time, should also take into account the legitimate rights and interests of the parties to the contract, the protection of maintaining the trade order, and the importance of the principle of freedom of contract and autonomy in the contract law.

The qualification of the two, about the validity of the contract
"Contract law" since the implementation of, about the effectiveness of a contract that has been an important issue in judicial practice. The judge in the case of disputes in contract review, first of all have to face is the contract valid or invalid. In the trial practice, some courts will void contract is a valid contract; some courts will effectively contract as invalid contract; there are challenged in court in both parties fail to the contract conditions, on the grounds that the contract is null and void the contract unconscionability; and the court would be part of the contract is invalid for all invalid contract. The book here only on the following two questions on the effectiveness of the contract.

(a) the relationship between "contract law" article fifty-second fifth and the mandatory provisions

1 on the mandatory provisions of law
Encourage trade, guarantee the safety of transactions is an important spirit of contract law. Only the violation of mandatory rules of law and administrative regulations can lead to contract. The so-called mandatory provisions, means that directly regulate behavior meaning or fact behavior, not allowed to act according to their free meaning to be changed or exclusion, otherwise, the law will be punished by the law. Geng Lin: the "effect" mandatory norms and contract, PhD dissertation of Tsinghua University School of law, 2006, page fortieth. Visible, the mandatory provisions generally include the following forms: one is regulations on autonomy on the meaning autonomous exercise elements, such as capacity, effective conditions and legal meaning type representation (restricted to the mandatory provisions of the situation on the behavior type); two is about the security transactions stability, protection of the third party trust regulations; three is about to avoid serious provisions unfair consequences or to meet the social demands for autonomy be limited. (DE) Carle?: "the general theory of Larenz German Civil Code" (the book), Wang Xiaoye, Shao Jiandong, Cheng Jianying, Xu Guojian, translated by Xie Huaishi, Xie Huaishi school, Law Press 2003 edition, page forty-second.
2 on the effectiveness of the mandatory provisions of distinction and management of mandatory provisions

Mandatory provisions include management of mandatory provisions and the effectiveness of the mandatory provisions, breach of effectiveness of the mandatory provisions, invalid contract; violation of mandatory provisions of the contract management, not necessarily invalid. Wang Chuang: "some problems of current" law court and commercial contract, load "applicable law" in 2009 ninth. The reason is: the effectiveness of the mandatory standard focuses on the legal acts violating the behavior value, in order to deny its legal effect for the purpose; and the management of mandatory norms to focus on the fact that the value of violation behavior, to prohibit their behavior for the purpose of. Shi Shangkuan: "general rules of civil law", Zhengda press 1980 edition, page 296th.
The effective provision, refers to the legal and administrative regulations specified in violation of the provisions will cause the contract invalid specification, or are not clearly violate the provisions will lead to contract, but the specification if the contract shall continue to be valid will damage the interests of the state and social public interests. This specification is intended to act in violation of the punishment, but also to negate the civil and commercial law. Therefore, only the violation of the mandatory norm effectiveness, that the contract should be determined invalid. Management regulations, refers to the laws and administrative regulations do not specify will lead to invalid contract violation of this specification. This specification is intended to manage and regulate the violation of laws, regulations and the consequences of behavior, but does not deny the validity of the behavior in the civil and commercial law. In addition, the court can only be based on the law of the NPC and its Standing Committee and the administrative rules and regulations formulated by the State Council that the contract is null and void, while not directly quoted local laws and administrative regulations as the judgment of contract invalid basis. If the violation of local regulations or administrative rules and regulations will lead to harm the public interest, according to the "contract law" fifty-second article fourth, to confirm the contract null and void to damage the public interest grounds. "Contract law" article fourteenth (two) states: "the contract law article fifty-second (five) mandatory provision, refers to the mandatory provisions."
In judicial practice, distinguishing effective mandatory provision and management of mandatory provisions of laws, regulations, should be comprehensive intention, trade-offs between conflicting interests (such as types, the interests of the transaction security and the prohibitor is aimed at parties or one party, only to be identified). For example, laws, regulations prohibited at a certain time, place of business, involving only the external situation to create legal behavior, rather than banning certain content of behavior, should be determined as the standard management of mandatory provisions, it shall not affect the validity of legal acts. Wang Zejian: "the general principles of civil law", San min 2000 edition, page 302nd. Not just in time to grasp, shall solicit the opinions of the relevant departments or request the people's court at a higher level.

(two) on the impact of approval, registration of a contract
In the "contract law" before the implementation, the contract form elements required approval, registration of these laws, regulations and plays a great role in determination of the validity of contract. There are three main views: the first view, approval, registration is the prerequisite for the provisions, if not meet these requirements, although the contract was established, but can not take effect. The second view, approval, registration is a special form of the elements of a contract, require approval, registration of the contract shall be regarded as to type contract, without approval, registration of the contract is not established. The third view, whether the provisions of the law of contract form elements belonging to the establishment or effective elements of the contract, should be a concrete analysis of specific situations, we should distinguish the different nature of the contract and make a conclusion. In this regard, the court approval, registration and most of the business scope as the effective elements of the contract, without going through the formalities of approval and registration, contract, are recognized as invalid. Forty-fourth "contract law" provisions of the second paragraph: "the law, administrative rules and regulations shall apply for approval, registration as, in accordance with the provisions of." "Contract law" article ninth (a) the provisions of the first paragraph: "in accordance with the provisions of article second paragraph forty-fourth of the contract law, contract law, administrative regulations should apply for approval, or approval registration procedures to take effect, in the first instance court before the end of the debate the parties did not apply for approval, approval or not and registration procedures, the people's court shall determine the contract not become effective; laws and administrative regulations, the contract shall go through the formalities of registration, but not the provisions of the registration after the entry into force, the parties do not go through the formalities of registration shall not affect the contract, the subject matter of the contract of ownership and other property rights can not be transferred." Therefore, for approval, registration effectiveness cognizance, should grasp the following principles:
1 the contract is established or not, influence should not be approved, the registration
Elements of the establishment approval, registration is not a contract. Because the "consensus is the real deal, mental events" (beauty), Thomas Robert? Who? Ulen: "law and economics", translated by Zhang Jun, Shanghai Sanlian Bookstore 1994 edition, page 313rd. Contract is a desirable outcome, is the embodiment of the principle of freedom of contract. Therefore, as long as the parties according to the "contract law" the provisions of the offer and acceptance rules, the main provisions of the contract agreement, or the "contract law" article thirty-seventh, the provisions of the situation, the contract is founded. As for the lack of non main clause, it can be remedied by the application of the law. Approval, registration and other formalities are factors outside parties, does not belong to the elements of a contract category, and belongs to the field of effectiveness evaluation.
The effective elements of the 2 approval, registration is not a contract
The validity of the contract, depending on the state of the value judgment, embodies a reasonable intervention of state of autonomy, the judge can only be specified according to the laws, administrative rules and regulations of the contract invalid. And the law, administrative regulations, the provisions of the approval of registration, does not belong to the mandatory norms, Wang Chuang: "the Supreme People's Court on the interpretation of the issues in the application of contract law of the people's Republic (a), some understanding of" carrying "case study" in 2000 first. Therefore, can not be absolute in the approved or registered or not to judge the validity of the contract.
3 approval, registration is only the elements of contract
"Effective" and "concept is not valid" correspondingly, rather than with the "invalid" relative should, therefore, "no effect" is not equal to "invalid". The entry into force of the contract and not force, is established to the contract as the premise. In general, the contract established according to law since its establishment in force. That is to say, the establishment of the contract is effective time time. However, there are two kinds of exceptions or special circumstances: one is attached with condition or the duration of the contract, it shall enter into force conditions of achievement or term to. Two the provisions of the laws, administrative rules and regulations shall be subject to approval, registration effect, since the approval, registration effect. In this case, though, because without going through approval or registration as a result of not yet effective contract, but such as liability for breach of contract, dispute settlement provisions, it shall be handled in accordance with the relevant provisions of the "contract law", which should be considered in force.
4 some procedures of approval and registration, is required, or approval, registration procedures can be completed in a certain period of time
In the trial practice, for some enterprises to fulfill the contract, behavior after completing approval, registration, shall take appropriate tolerant attitude, as long as their timely before the first end of the court debate began after the approval, registration, then, the court shall admit the contract has been in force. This approach is also with the Supreme People's court before the relevant judicial interpretations spirit consistent. Answers to the Supreme People's Court on some issues about implementing the "real estate development business case real estate management law" (December 27, 1995) the twenty-sixth stipulation: "commercial housing pre-sale side, holding land use permits, also put in some start construction funds, the construction, the pre-sale of commercial housing, in the first instance proceedings for the pre-sale permit, the pre-sale contract can be identified effectively." Here the "effective" should be understood as "effect".
5 the correct understanding of legal meaning of registration
"Property law" relevant provisions on immovable property registration and the provisions of the "security law" different, this involves is the key problem of immovable property mortgage registration and its legal consequences. Not the chattel mortgage in the property to set the burden, and the second mortgagee directly related trading interests of the third person. In order to facilitate the third people in the trade with the mortgagor to make reasonable expectations, to avoid damage to the creditor; ownership is convenient to view the mortgage property and the mortgage right of priority, to decide whether to accept the mortgaged guarantee, therefore, do not set the chattel mortgage shall be registered. In this regard, the "security law" clearly provides not the chattel mortgage registration. "Guarantee law" forty-first stipulates that: "the parties to the mortgage law the forty-second regulation of the property, it shall register the mortgaged property, the mortgage contract shall become effective on the date of." "guarantee law" forty-second article: sector "to register the mortgaged property are as follows: (a) there will be no ground to the mortgage of land use rights, land management departments for the issuance of land use right certificate; (two) to the city real estate or township (town), village enterprises workshop etc. mortgaging building, government people's governments above county departments; (three) to the forest mortgage, more trees director for the department level; (four) to aircraft, ships, vehicles are mortgaged, the registration departments for means of transport; (five) to the enterprise equipment and other chattel mortgage, the industry and Commerce Administration of the place where the property is located." The but the "mortgage contract on the date of its registration, the provisions" confusing claims and property acts. A mortgage contract is based on the real right change behavior because the purpose of the relationship of creditor's right, which belongs to the category of the establishment, effect, should be based on "contract law" to determine the. The effect of mortgage, in addition to the requirements of the mortgage contract, the legal requirement, must also meet the "demonstrative principle of real right law". Because the mortgagee without registration, the mortgage contract shall not become effective, the mortgagee not only enjoy mortgages, even lost the right of mortgage for liability for breach of contract. This is not only for the mortgagee is not fair, also will encourage the malicious damage to the interests of others, is not conducive to the protection of the legitimate rights and interests of the parties to the mortgage contract, the maintenance is not conducive to social and economic order. Therefore, "property law" 187th stipulation: "this law article 180th paragraph 1 to third sets of property or the provisions of the fifth buildings under construction mortgage, shall apply for mortgage registration, mortgage right shall be established since the registration." Visible, "property law" will "guarantee law" provisions of the "mortgage contract becomes effective on the date of registration", to "the mortgage right shall be established since the" registration, distinguish the validity of mortgage contracts and property variation effect.

Two measures three, preservation of creditor's rights system
(a) the legislative purpose of debt preservation system
The 73~75 China's "contract law" article of the debt preservation system contract system of right of subrogation of creditor and creditor's right of rescission provisions. The system of right of subrogation, the provisions of the seventy-third creditors, responsibility to preservation of the debtor's property; and as specified in article 74~75 of the creditor's right of revocation system, is intended to restore debtor's responsible property. "Contract law" article 11~26 (a) and the "contract law" article 17~20 (two) on several issues of the right of subrogation and revocation system made special explanation. Preservation of creditor's rights system aims to prevent the property of the debtor is reduced improperly cause creditors undue damage. Creditor's subrogation system mainly focus on the negative behavior, namely when implementing a debtor is indolent in exercising its creditor's right and the effect of creditor's rights, the law allows the generation of debtor, the debtor to third people in its own name rights. Positive behavior and the creditor's right of revocation is mainly focus on the debtor, the debtor does not fulfill the debt in its implementation, and reduce the damage property and creditors realization of act, the law gives creditor petitioned the court to revoke the obligor to act right. It should be noted that, according to the doctrine of privity of contract, the contract creditor's rights only in the specific parties, namely "the creditors, the debtor to pay is attributable to the creditors, the debtor must accept performance, the creditor may request for payment to the debtor" Wang Ze as: "civil code" (Book 1 Introduction), China University of Political Science and Law press, 2002 edition, page seventeenth.. Visible, the creditor's subrogation and revocation system, is the traditional contract law "privity of contract" principle breakthrough, the legislative basis of the system is to ensure the realization of creditor's rights.
(two) the creditor's subrogation problems
1 of the creditor's rights must identify the problem
China's "contract law" article seventy-third the creation of the creditor's right of subrogation system, the system to protect the legitimate rights and interests of creditors, to protect the safety of transactions, maintain the normal order of civil and commercial circulation has important significance. In recent years, although the right of subrogation is widely advocated by creditors, but in the judicial practice, the court still exist many problems in understanding and applying the right of subrogation is. Here the need is clear, in addition to "contract law" (a) four conditions are provided, must be one of the elements is also a creditor subrogation. The creditor must determine, refers to the debtor creditor's rights have no objection to the existence and content of creditor's rights, or through the courts and arbitration institutions after the referee has been determined. But what is the "right" to determine the "creditor and debtor and creditors of the debtor to the secondary debtor creditor must determine whether the", also relates to the case scope of subrogation. Including two legal relationships in a suit of subrogation, namely the debt obligation between the creditor and debtor relationship between the debtor and the secondary debtor relationship.
In the trial practice should be clear, exercise of right of subrogation should only require creditors of the debtor creditor debtor creditor's rights can be determined, the secondary obligor sure is not a necessary condition. First of all, if the creditor's rights of the debtor's uncertainty, creditor subrogation of litigation against the debtor, the secondary debtor because they do not know the creditors of the debtor and creditor's rights to plea. Therefore, if the creditors of the debtor does not determine, you cannot make the subrogation of litigation. And the debtor creditor to debtor even uncertain, the secondary obligor in creditor brings a suit of subrogation, still can the debtor creditor relationship between himself and the debtor and the debtor will be based on the original, defenses to fight creditors. When necessary, notify the debtor as third people to participate in the proceedings, the rights and obligations between the debtor and the secondary debtor are tried and identified, the identified does not damage the interests of the secondary obligor. Therefore, the claims and liabilities between the debtor and the secondary debtor is identified in the exercise of the state does not affect the right of subrogation. At the same time, the debtor to the secondary obligor amount should also be incorporated into the scope of subrogation of the trial of the case, and this is the real sense of hearing. If the secondary obligor, the debtor and the creditor has determined the amount of defense but the creditor objection, the court should make judicial review, which is the inherent requirement of litigation for right of subrogation, is also in line with the principle of litigation economy.
Visible, the court should accurately grasp the subrogation case range, based on clear two legal relations, to confirm the debtor and the secondary debtor specific debt amount, and to determine the secondary obligor shall be liable to the subrogation right amount of debt.
2 on the subrogation of litigation procedures
The exercise of the right of subrogation is the breakthrough of contract relativity as the cost, therefore, this breakthrough will have an important impact on the interests of both sides. The key to accurately grasp the essentials of subrogation, realize the balance between the two value is the goal in "the protection of creditor's rights" and "the protection of the debtor's economic freedom". In the trial practice, the trial should be the problem of program main problems of subrogation cases, here will do the following analysis:
First, the creditors to the debtor as the defendant after the proceedings, but also to the same or different court court secondary obligor as the defendant in the case of a suit of subrogation brought by the debtor as the defendant, the general should be based on the relevant jurisdiction "Civil Procedure Law" provisions of the jurisdiction of the court; subrogation shall be in accordance with the "law of contract explanation (a)" the provisions of section fourteenth to determine the jurisdiction of the court. The jurisdiction of the court if the ordinary jurisdiction of court and subrogation of litigation for the same court, which has jurisdiction concurrence, accepted by the same court case, but not the merger trial. In ordinary litigation and subrogation of litigation coexist situation, either a lawsuit filed in advance, to carry out the ordinary civil priority principle, accepts the subrogation of litigation court shall suspend the proceedings for right of subrogation proceedings.
Second, in the sub debtor creditor brings a suit of subrogation, the secondary obligor shall be separately on the lawsuit case, the court may prosecute illegal by the debtor is not accepted or rejected the prosecution. Of course, if the debtor in the creditor brings a suit of subrogation of the creditor's right of subrogation, more than the amount requested by the debtor as the defendant of litigation, in compliance with the statutory conditions of prosecution, the court shall accept the case.
Third, about how to use the ruling in a suit of subrogation problems. If the debtor creditor relationship between the creditor and the debtor does not exist, the court should not legitimate grounds to sue, the court rejected the suit brought by the obligee. It should be noted that, this is only the court dismissed the proceedings for right of subrogation, if the creditor to debtor as the defendant be prosecuted and in accordance with the "Civil Procedure Law" provisions of the 108th conditions of prosecution, the court shall be accepted, should not be to the right of subrogation of litigation was rejected as not to accept or reject the prosecution.
Attention should be paid to the 3 problems in the judicial practice
First, should pay attention to avoid the subrogation applies the tendency of expansion. In the trial practice, should pay attention to distinguish right and real right. The creditor's subrogation system only China's "contract law" on the creditor's rights as the standard, the creditor subrogation rights not only. Because, the property can be through the enforcement procedures to solve without using the cumbersome procedures subrogation. As for the debtor's property in the hands of the third, because the property for the debtor, therefore, creditors can apply for the property of the debtor to enforce and exercise the right of subrogation is not necessary for, or increase the involvement of the lawsuit cost. Nature, preemptive right with the property is not right, so can not be subrogation.
Second, we should notice the difference between China's "contract law" subrogation right system and the traditional civil subrogation right system. On the exercise of the right of subrogation to the debtor effect, in the traditional civil law theories on right of subrogation, subrogation system function is the responsibility of property preservation of the debtor, but not for the specific interests of the creditors. Subrogation is the responsibility of property preservation of the debtor, the responsibility of property is the guarantee of all the creditors, each creditor whether or not exercise the right of subrogation, can be based on the principle of equality of creditor's rights, on the debtor's property equal repayment. Therefore, the creditor's right of subrogation, subrogation refers only to the exercise of the rights, the rights and obligations of the debtor bear still. The creditor's right of subrogation effects should be directly attributable to the debtor, third people (the secondary obligor to perform the obligations shall be the debtor) also I was. Wang Chuang: "the Supreme People's Court on the interpretation of the issues in the application of contract law of the people's Republic (a), some understanding of" carrying "case study" in 2000 first. China's "contract law" on the right of subrogation in this respect, breaks through the traditional civil right of subrogation theory, its major breakthrough: subrogation right result does not belong to the debtor, the debtor is in debt limits, directly attributable to the creditor. In other words, the exercise of the right of subrogation of creditor's rights, is not only the exercise of subrogation, and offset between the creditor and the debtor effect. The theoretical basis of the provisions of this lies in the debtor enjoys the right of set off to the creditors, according to its practice is to solve the "triangle debts" problem. Therefore, the court may direct any secondary obligor shall perform the payment obligation, to offset the creditors of the debtor's creditor's rights and debt, corresponding relationship between the creditor and the debtor, the debtor and the secondary debtor destroy.
Third, the relationship between the debtor and the problem of the distinction between the proceedings for right of subrogation. In a suit of subrogation, often mixed with the lawsuit against the secondary obligor, the debtor for debt as part of more than the amount requested creditor subrogation, the secondary obligor to the same court proceedings for right of subrogation lawsuit. For example: there are 1000000 yuan debt between the creditor and the debtor and the existence of A B, 1500000 yuan of debt between the debtor and the secondary debtor C B. In accordance with the subrogation of litigation under the condition of A C, to bring a suit of subrogation, asked C to perform 1000000 yuan debt. In this procedure, the B file for the same court ordered the secondary obligor C perform 500000 yuan debt. In this case, the people's court shall clearly distinguish these two actions: only the former belong to the proceedings for right of subrogation, the latter belongs to the common debt of contract litigation, not part of the proceedings for right of subrogation. So, when the debtor in subrogation litigation, claims on the part of more than the creditor exercises the right of subrogation against the secondary obligor amount in the same court, the court shall inform the prosecuted to the court of competent jurisdiction. If the debtor's prosecution in accordance with the legal conditions, the court shall accept the case. However, due to the debt claim amount is subject to the proceedings for right of subrogation results, therefore, before accepting the debtor court legally effective judgment on the suit of subrogation, shall suspend the trial. "Contract law" provisions of article twenty-second (a): "the debtor in a suit of subrogation, the secondary obligor to sue claim part exceed the amount requested by the creditor, the people's court shall inform the people's court shall be charged to the jurisdiction of the. The prosecution in accordance with the statutory conditions, the people's court shall accept the case; before the people's court prosecution of the legally effective judgment on the suit of subrogation, shall suspend."

Three) the creditor's right of revocation problem
Compared with the same as creditor's right of subrogation system of creditor's right of rescission, force more powerful, because the right of subrogation of the creditor's subrogation rights both in the present, the debtor or the secondary debtor, is to should have the things that, its effect is small; and the creditor's right of rescission is to revoke the obligor for behavior from third people retrieve liability property, is the legal relationship of the established damage, was not due to the debtor and events between third people, the great impact. So, in the exercise of the theory for the creditor's right of revocation shall be strictly restricted conditions, so as to avoid the accident harm to the debtor and the third person, destroy the transaction security.
1 the debtor and the third person must have ill paid civil legal acts
China's "contract law" article seventy-fourth the provisions of the revocation of the right will be revoked the subject behavior is divided into free and paid behavior of two cases. The free behavior, such as the debtor creditor's right or free transfer of property, not to the subjective malicious as necessary. For paid behavior, such as the debtor obviously unreasonable low price to transfer property, require the debtor and the third people have malicious. This followed the civil law right of rescission revocation theory, namely voluntary behavior, only the beneficiaries lose free benefits, does not damage the inherent interest, therefore, the exercise of the right to revoke the less impact on the interests of the parties. However, in between the creditor and the third person paid to withdraw behavior, law must coexist and conflict in various rights case to balance competition, not free to favour one more than another, otherwise unable to implement the "equal" principle, also cannot maintain transaction security. Therefore, the legal act for the debtor and the third person, the beneficiary have interest quite to the price, the interest should be protected by law; but if you have the subjective malicious, do not need protection. So, in the act of paying of the occasion, the establishment of the creditor's right of cancellation must be necessary for the parties subjective malice. Among them, the debtor's malicious is tenable condition of cancellation, the beneficiary is the exercise of the right to revoke the elements of malicious. Shi Shangkuan: "law of obligation", China University of Political Science and Law press, 2000 edition, page 473rd.
2 the scope of subrogation problems
There are two kinds of views on the scope of exercising the right of revocation: one view, the exercise of the right to revoke the aims at preserving all creditor claims, therefore, limited to the amount the exercise scope is not to preserve the exercising the right of revocation of creditors, but to all creditors creditor's right to the limit. Wang Jiafu editor: "China civil law? Of creditor's rights", Law Press, 1991 edition, page 186th. Another view was that, when the number of creditors suffer the same debtor infringed upon, the creditor has the right to revoke the right to prosecute in accordance with, the request is only confined to the respective category preservation of creditor's rights. Yang Lixin: "the security problem" on the contract law in the debt load, "Frontiers of legal" in 1999 second. "Law of contract interpretation (a)" twenty-fifth paragraph second: "two or two or more creditors to the debtor as the defendant, on the same subject about right of revocation proceedings, the people's court may adjudicate." Thus, "contract law" (a) the scope of subrogation is limited in their claims within the preserve of creditors.
Need to pay attention to 3 problems in the judicial practice
(1) the debtor and the third malicious subjective judgment
The judgment debtor and third people paid behavior occasions in the malicious, general existence of idealism and the meaning of the two legislation. According to the idealism, the debtor's malicious, refers to the debtor to realize his behavior may cause his loss of ability to repay, and harmful to the claims of the consequences. France, Japan and Taiwan region of China were collected this legislation. According to the autonomy of the will, the debtor's malicious, refers to the debtor creditor behavior requires not only to its harmful consequences to have understanding, but also damage to creditors in the subjective meaning. Germany, Switzerland and Austria and other nations adopted such legislation. China's "contract law" is basically take the idealism. The debtor's malicious, as long as the burden of proof to prove that the debtor "obviously unreasonable low price to the transfer of property" behavior, just enough to show that the subjective malicious. In judicial practice, the court in determining whether the obligor and the assignee with malice, attention should be paid to the judgment of "an obviously unreasonable low price" standard. On the debtor's malicious, the court only by the price of the disposition of the property will affect the realization of creditor claims, can be identified with malice, should not be strictly limited in amount; and the assignee's malicious, generally requires only evidence to prove that the know "obvious price" can be, but not its known to cause damage to creditors, but should not be asked whether the third person has intentionally damage the creditor's intentions, or ever and the debtor malicious collusion.
(2) determine the specific scope of validity of the cancellation right
Although the "contract law" section first (a) twenty-fifth adopted relatively invalid theory, states: "the creditors in accordance with the provisions of contract law seventy-fourth mention revocation proceedings, request the people's court to rescind the debtor creditor's right or transfer of property, the people's court shall hear the amount claimed by the obligee, revoked, the behavior is invalid from the beginning." But the court in determining the scope of cancellation effect, but also should pay attention to the revocation of the conduct of the subject can be divided into standard, to determine the scope of validity of right of revocation. That is to say: first, whether paid or unpaid behavior occasions, as long as the revocation of the conduct of the subject is separable, then, must strictly abide by the relative invalid theory, part of the amount of debt cancellation behavior scope shall only be enjoyed by the creditor in, while other parts are still effective, in order to ensure the the debtor's economic freedom and the third transaction security; second, if the revocation of the conduct of the subject can not be separated, so, in order to achieve the purpose of protecting the right of rescission, creditor's rights, it shall be deemed as withdrawn behaviour are invalid. Of course, the civil legal act several to dispose of their property are engaged in the debtor, the debtor creditor claims act is only revoked all invalid, and the debtor other disposal of property especially the transaction behavior is still valid. Wang Chuang: "the Supreme People's Court on the interpretation of the issues in the application of contract law of the people's Republic (a), some understanding of" carrying "case study" in 2000 first.
(3) debt preservation system of creditor's cancellation right of rescission right and the difference between the other civil and Commercial Law
In the civil and commercial law, in addition to the creditor's right of rescission system, there are civil behavior on the general right of rescission. "General principles of civil law" fifty-ninth and "contract law" provisions of article fifty-fourth of the civil behavior because of flaws of declaration of intention and the general right of revocation. In the trial practice, attention should be paid to the creditor's right of rescission and civil action in the general right of revocation has the following different: one is the cancellation of different objects. The former is the revocation of others (the debtor and the third person) civil legal act between, while the latter is a civil legal act repeal rights between yourself and others. The two is withdrawn for different purposes. The former aims to preserve the creditor's right, the effectiveness and the latter is to destroy the existing civil legal act of. Three is to exercise the right of revocation for different reasons. The reasons for the exercise of the debtor creditor is due to harmful behavior, reason and the latter is the exercise of the rights of untrue declaration of will or civil legal content not fair. Four is the cancellation effect of different. Results the effective exercise only relatively ineffective, generally do not occur to compensate for the loss of effectiveness, and the latter in the exercise, the relative person may claim damages.