중국법상 ‘미발효 계약(未生效合同)’의 법적 성격 및 구제 메커니즘에 관한 연구

In recent years, the type of “ineffective contract”, which breaks through the traditional scope of contract validity, has gradually attracted attention in theory and practice. The term “ineffective” originates from the distinction between the formation and the entry into force of a contract, and is intended to respond to the legal problems that may arise from the ineffective stage of a contract. For the purpose of exploring the legal issues faced by contracts that, although concluded, are ineffective, the Chinese academic community has actively engaged in discussions. At present, there is no longer any academic controversy regarding the fundamental theories such as the concept and nature of ineffective contracts. Article 502 of China’s Civil Code establishes the distinct legal status of contracts that have become ineffective and legislatively clarifies the rules for the independent effectiveness of approval clauses, thereby largely fostering a consensus on the relevant foundational theories. However, theoretical disputes and practical dilemmas persist concerning the dynamic aspects of their regulation, such as the structure of effectiveness for ineffective contracts, the nature of liability, and the mechanisms for relief. Article 12 of the Judicial Interpretation of the General Principles of Contracts, issued in late 2023, offers a novel approach to systematically addressing this issue. This study aims to establish a clear framework for contract validity, beginning by clarifying the conceptual distinction between “valid” and “effective”, and providing a detailed explanation of the legal effects of ineffective contracts. In addition, it clarifies the logical relationship wherein validity serves as a prerequisite for effectiveness. Subsequently, through an analysis of relevant provisions, it will delineate the various states of effectiveness and their corresponding legal consequences. Building upon this foundation, and incorporating academic perspectives alongside the evolution of the legal system, it is argued that while the contract as a whole may not yet acquire full formal binding force, the approval clause possesses substantive binding force due to its independent effectiveness. This consequently affirms the systemic independence of ineffective contracts. Then, under the framework of typological thinking, this article distinguishes between liability for breach of contract and liability for contractual negligence, and proposes a unified rule that those who violate the obligation of approval or fail to meet the conditions for entry into force shall be liable for breach of contract. Focusing on the liability mechanism, the article focuses on the three main relief paths of specific performance, contract termination, and damages-and combines the latest judicial interpretations to refine the scope of damages and strengthen the path of application of the system centered on the liability for breach of contract.