违反报批义务合同的效力认定及其权利救济

发布时间：2018-06-23 04:20

本文选题：报批义务 + 独立生效　；参考：《苏州大学》2015年硕士论文

【摘要】：在合同有效成立后,国家干预合同效力及当事人责任分配的唯一正当理由是社会公共利益(或第三人利益),在合同约定未触及公共利益(或第三人利益)时,应当贯彻当事人意思自治原则。批准生效合同在批准之前,报请批准条款已基于当事人意思而独立生效,对于违反报批义务的行为承担的是违约责任,而非缔约过失责任,但该违约责任的损害赔偿额应当与批准可能性相当。原告诉请继续履行时,以“效率”为目标、以损害赔偿替代继续履行的效率违约理论并不可取,批准可能性应当成为决定原告胜诉与否的根本因素。应将审批机关作为“专家证人”的制度正式引入庭审,赋予审批机关在庭审中判断批准可能性大小的资格,以达到在司法权与行政权互不侵犯彼此领域的前提下,既实现行政审批的管控目标又顾及当事人间意思自治的状态,最终公平合理地解决双方争议。
[Abstract]:After the effective establishment of the contract, the only legitimate reason for the state to interfere with the validity of the contract and the distribution of the responsibilities of the parties is the public interest of the society (or the interests of the third party), and when the contract agreement does not touch the public interest (or the interests of the third party), The principle of party autonomy shall be implemented. Prior to the approval of the effective contract, the terms of application for approval have already taken effect independently on the basis of the intention of the parties, and the liability for breach of the obligation to submit approval is liability for breach of contract, rather than liability for fault in concluding the treaty, However, the damages for the liability for breach of contract shall be equivalent to the possibility of approval. When the plaintiff claims to continue to perform, the theory of "efficiency" as the target, and the theory of efficiency breach of contract replaced by compensation for damages is not desirable, and the possibility of approval should be the fundamental factor to decide the plaintiff's success or not. The system of examining and approving authorities as "expert witnesses" should be formally introduced into the trial, and the examination and approval authorities should be given the qualification to judge the possibility of approval in the trial, so as to achieve the premise that judicial power and administrative power do not infringe on each other's fields. It not only realizes the control goal of administrative examination and approval, but also takes into account the state of autonomy between the parties, and finally resolves the dispute fairly and reasonably.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.6

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