Selected Papers of The Jurist (法学家), Volume 3
Edited by Jichun Shi
Chapter 12: Impact of administrative approval on validity of contract: theory and practice
AbstractThe rules making administrative approval necessary for the enforcement of contract are not only different from the mandatory rules adopted by Article 52(5) of the Contract Law, but also different from the registration rules adopted by the Property Law. Therefore, a contract without administrative approval cannot be judged invalid on the ground of violating mandatory rules. At the same time, the separation principle in the Property Law cannot always be implied to analyze the impact of administrative approval on the validity of contract. The administrative approval is just the necessary condition for the enforcement of the contract, not the sufficient condition. Therefore, disputes between the parties of a contract should be resolved through civil proceedings instead of administrative procedure. When the party who bears the duty to apply for the administrative approval does not do it in accordance with the law or the contract, the other party can claim liability for breach of contract or the contracting negligence responsibility.
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