Article 13: Where a contract is invalid or voidable, and the parties claim that the contract is valid on the grounds that the contract has been filed with the relevant administrative departments, has been approved by the approving authority, or has been registered for the alteration or transfer of property rights in accordance with the contract, the people's court will not support it.
【Purpose of the Article】
This article is about the record, approval or registration without affecting the court's determination that the contract is invalid or voidable on other grounds of invalidity or revocability.
[Understanding and Application]
The main purpose of this regulation is that if a contract that has been filed, approved or registered has grounds for invalidity or revocacy, it does not prevent the people's court from determining that the contract is invalid or voidable on the basis of the invalidity or revocacy. Similarly, an invalid or voidable contract does not become a valid contract just because it has been filed, approved or registered. In practice, in determining the validity of a contract, many judges of intermediate and basic courts often have such doubts, that is, if a contract has been filed and approved by the relevant administrative department, or has gone through the formalities of registration of change or transfer of property rights in accordance with the contract, can it still be determined that it is invalid or revocable because of the defects in validity? This article is designed to address issues such as these. Considering that filing, approval or registration each have different legal significance, this is analyzed in detail below.
1. Filing and contract validity
Filing refers to reporting the situation to the competent authority in writing for archiving and future reference. Filings can occur between different state authorities. For example, article 109 of the Legislation Law stipulates that administrative regulations, local regulations, autonomous regulations, and special regulations and rules shall be reported to the relevant authorities for the record within 30 days of promulgation. Filing can also occur between subordinate and subordinate authorities. For example, article 54 of the Forestry Law stipulates that the competent forestry department of a provincial-level government shall formulate an annual felling quota for its administrative area, and after soliciting the opinions of the competent forestry department of the State Council, it shall be promulgated for implementation after being approved by the people's government at the same level, and shall be reported to the State Council for the record. Filing can also take place between market entities and competent authorities. For example, Article 54 of the Law on the Administration of Urban Real Estate stipulates that for a housing lease, the lessor and the lessee shall sign a written lease contract and register it with the real estate management department for the record. For another example, paragraph 2 of Article 45 of the Law on the Administration of Urban Real Estate stipulates that the pre-seller of commercial housing shall, in accordance with the relevant provisions of the state, submit the pre-sale contract to the real estate management department and the land management department of the people's government at or above the county level for registration and filing.
Based on whether the filing authority conducts a substantive examination, there are two types of filing: examination filing and notification filing. In the examination-type filing, the filing authority shall conduct a substantive review of the filing documents, which is essentially a form of power supervision. For example, article 112 of the Legislation Law stipulates that if the working bodies of the special committees and standing committees of the National People's Congress find that administrative regulations, local regulations, autonomous regulations and special regulations are in conflict with the Constitution or laws, or that there are problems of constitutionality or legality, they may submit a written review opinion to the formulating organ. The formulating organ shall, within two months, study and submit an opinion on whether to revise or repeal it, and give feedback to the filing authority. The main purpose of informative filing is to submit and register the information in the case so that the higher-level authority or the competent authority can know the information and grasp the situation, but the failure to file does not affect the decision that has been made or the validity of the contract. For example, article 706 of the Civil Code clearly stipulates that "if the parties fail to go through the formalities for the registration and filing of the lease contract in accordance with the provisions of laws and administrative regulations, the validity of the contract shall not be affected." ”
The record-keeping involved in civil and commercial trials is mainly the record-keeping made by market entities to the competent authorities. Some laws clearly stipulate that administrative penalties may be imposed on conduct that should be filed but not filed. For example, paragraph 2 of Article 160 of the Securities Law stipulates that securities services other than securities investment consulting business shall be reported to the securities regulatory authority of the State Council and the relevant competent departments of the State Council for the record. In accordance with the provisions of Article 213 of the Securities Law, the relevant persons and institutions may be subject to administrative penalties. Others are not specified. For example, if a housing lease contract or a commercial housing pre-sale contract has not been filed, in practice, penalties will generally not be imposed for the failure to file, and the result is that the filing will lose its due regulatory role over market entities and their behaviors. However, in any case, the failure to file does not affect the validity of the contract, which has become the consensus of civil and commercial trials.
It is worth discussing whether the fact that the competent authority has filed the contract means that it has conducted a review of the legality of the contract, so that the contract is a valid contract. In the case of informative filing, the competent authority does not conduct a substantive examination of the contract, and the contract that has been filed is of course not necessarily a valid contract. Even if it is a review-type record, the filing authority mainly reviews whether the contract meets the regulatory requirements, and it should not and does not have the ability to conduct a validity review of whether the contract is a true expression of intent of the parties. In particular, it should be pointed out that determining whether a contract is valid or not is the function and power of the court or arbitration institution as a dispute resolution institution after the dispute has been litigated, in other words, only the court or arbitration institution has the right to determine whether the contract is valid or invalid, and the administrative authority does not have such authority, which is precisely the fundamental reason why even if the contract has gone through the filing formalities, it does not mean that the contract is necessarily valid.
2. Ratification and validity of the contract
In the approval of an effective contract, the approving authority only examines whether the contract is in compliance with the law, but does not examine the authenticity of the expression of intent. The so-called authenticity review of the expression of intent refers to the examination of whether the expression of intent is voluntary and genuine. In the case of legality review, what is examined is whether the content of the expression of intent violates the provisions of public law, which reflects the intervention and control of public law in private law, and spans the two major fields of public law and private law. On the other hand, the authenticity examination is aimed at the quality of the expression of intent itself, and whether the examination of the expression of intent is voluntary and genuine, is still within the boundaries of private law. In addition, in the case of legality review, the examination and approval authority makes a decision to approve or disapprove by reviewing whether the content of the contract is legal, which in turn affects the validity of the contract: if approved, the contract is valid; If it is not approved, the contract shall not take effect. It is the public authority that determines the validity of the contract by carrying out the act of approval. However, in the case of authenticity review, the party with defects in the expression of intent enjoys the right of revocation, and it can determine the validity of the contract through the exercise of the right of revocation, so the principle of autonomy of will is still reflected.
The reason why the examination and approval organs cannot examine the authenticity of the expression of intent is because of the dual need to safeguard the principle of autonomy of will and the principle of administration according to law, because if the public authority is allowed to examine the authenticity of the expression of intent itself through examination and approval, the principle of autonomy of will may be eroded by public power, which is contrary to the principle of autonomy of will and the principle of administration according to law. It should be particularly pointed out that whether the expression of intent is voluntary and true can only be judged by the expressor himself or the people's court, and the examination and approval authority cannot and has no right to make such a judgment. The practical advantage of limiting the examination and approval of a contract to the review of legality rather than the examination of the authenticity of the expression of intent is that even if there are grounds for revocation of the contract after approval, the parties can directly file a civil lawsuit in accordance with the provisions of the Civil Code on revocable contracts, without first filing an administrative lawsuit for revocation of approval. For example, Article 3 of the Provisions on Foreign-Invested Enterprises (I) stipulates that if a people's court discovers in the course of hearing a case that a foreign-invested enterprise contract approved by the examination and approval authority of a foreign-invested enterprise is voidable as prescribed by laws and administrative regulations, and the parties request to revoke it, the people's court shall support it. Since the examination and approval does not involve the authenticity of the expression of intent, when the true expression of intent of the parties is inconsistent with the record in the approval certificate, in principle, the parties should be allowed to perform the contract or confirm their rights according to the true intention, rather than simply determining the rights and obligations between the parties based on the record in the approval certificate.
The legality review is the legality review of the contract conducted by the competent authority, which is similar to the validity review of the contract by the people's court: both are the intervention of public law in private law, involving the coordination of private law autonomy and state control, so in terms of their normative nature, they are both norms of the nature of public law; Breach of both may affect the validity of the contract. In view of the fact that the legality review and the validity review belong to the norms of public law, and the violation of the two first leads to the liability of the public law, and the impact of the two on the validity of the contract is only the result of the indirect projection of the effect of the public law, there is the problem of introducing the norms of public law into the contract law by inducing the norm. However, it should also be noted that there are still differences between the two, which are manifested in the following aspects.
First, the nature of the norms is different. The validity review mainly examines whether the contract violates the prohibitive provisions of laws and administrative regulations, and the essence is to examine whether the expression of intent exceeds the boundaries of public law, and the result is to directly determine whether the contract is valid; The provisions on the need for examination and approval of contracts are essentially a way for the competent authority to manage the contract, and the examination and approval authority indirectly affects the validity of the contract by approving or not approving the contract: if it is approved, the contract takes effect; If it is not approved, the contract shall not take effect; If the contract does not take effect before it is submitted for approval, it can be made effective by submitting it for approval. Since the approval of a contract does not examine the authenticity of the expression of intent, even an approved contract may not be valid. In other words, if there are grounds for invalidity or revocation, the people's court can still directly determine that the approved contract is invalid or voidable.
Second, the applicable circumstances are different. The subject of validity review is the people's court, and in disputes that have been accepted by the court, the people's court may review and determine the validity of the contract ex officio. When the people's courts conduct the review, there is also no such restriction on the above-mentioned lawful choice. However, the subject of the legality review is the examination and approval authority as the competent authority, and the examination and approval does not have the nature of dispute resolution, and its review also has the characteristics of limited scope, and the examination and approval authority itself has no right to evaluate the validity of the contract and declare the contract invalid. Even if a contract is not approved, it is not invalid because the examination and approval authority declares it invalid (in this case, the subject who has the right to declare the contract invalid is still the people's court), but because it has not been approved, so that the contract fails to "meet" the statutory conditions for taking effect, and finally does not take effect. Although invalidity is no different from invalidity in terms of results, invalidity does not include the negative evaluation of the law, while invalidity includes the content of the negative evaluation.
Thirdly, it leads to differences in norms. In order for public law norms to produce private law effects, they depend on the inducement of private law norms. In the validity review, the norm that leads the norms of public law to private law is article 153 of the Civil Code; In the legality review, the norm that leads the norms of public law to private law is Article 502 of the Civil Code. The distinction between the two is conducive to clarifying the basis of the claim and accurately applying the law.
The benefit of distinguishing between legality review and validity review is that the contract that has not been approved has not taken effect because it does not meet the statutory conditions for validity, but at this time, the parties can still continue to submit for approval by submitting supplementary materials or amending the terms of the contract, so as to finally obtain approval. This is different from the invalidity of a contract. In the event that the contract is invalid, there is no possibility of corrective effect. In particular, it should be pointed out that the restrictive nature of the examination and approval authority's review determines that the approved contract only means that it has passed the legality review of the examination and approval authority, thus meeting the statutory conditions for validity, but it does not mean that it is necessarily valid, because the contract may also violate other validity norms. Therefore, if an approved contract has any circumstances that lead to the invalidity of the contract as stipulated in the Civil Code, for example, if there is malicious collusion to harm the interests of the state, the people's court can still directly declare the contract invalid without going through administrative litigation procedures and revoke the examination and approval first. For another example, Article 3 of the Provisions on Foreign-Invested Enterprises (I) stipulates that if a people's court discovers that a contract of a foreign-invested enterprise approved by the examination and approval authority of a foreign-invested enterprise is invalid as prescribed by laws and administrative regulations, it shall find the contract invalid.
3. Registration and validity of the contract
Registration, as a method of publicity, is often an effective condition for changes in real estate rights; The method of publicity of movable property is delivery, but in the case of movable property and security of rights, registration is also an effective method of publicity, but it is only a countervailing element. However, regardless of whether it is an element of confrontation or an element of validity, based on the principle of distinction, registration or delivery does not affect the validity of the contract as the cause of the change in the property right, so the validity of the contract cannot be denied on the ground that the registration has not been completed. Of course, the parties usually have to submit a contract when they go through the registration of the change or transfer of property rights, but the registration authority does not conduct a comprehensive review of the validity of the contract, so even if the registration of the change or transfer of property rights is handled in accordance with the contract, the contract cannot be considered to be necessarily valid. In practice, based on the subordinate nature of the guarantee, the invalidity of the main contract will lead to the invalidity of the guarantee contract, so even if the mortgage has been registered, it will be invalid because of the invalidity of the main contract, and the validity of the mortgage cannot be recognized on the ground that the mortgage has been registered, let alone that the mortgage contract is invalid on the ground that the cancellation of registration has not been completed.