未经行政审批之合同效力的文献研究综述

Review of Literature Studies on the Effectiveness of Contracts without Administrative Approval

关于行政审批与合同效力,目前学界的分析可归为两条进路,第一条进路是将行政审批与合同效力相粘合,将行政审批作为合同的特别生效要件;第二条进路是将行政审批与合同效力相剥离,通过区分二者,将行政审批作为独立的体系,而合同效力则依然按私法领域规则加以判断。同时,对于未履行报批义务的合同效力,也存在着"未生效说"、"无效说"、"效力待定说"、"有效说"等各种争论,其中不乏凿枘。

With regard to administrative approval and contract effectiveness,the current academic analysis can be classified into two approaches.The first approach is to combine the administrative approval with the contract effectiveness,and the administrative approval is a special entry requirement for contracts.The second approach is to separate the administrative approval from the contract effectiveness.The administrative approval is regarded as an independent system,and the contract effectiveness is still judged according to the rules of the private law.At the same time,there are also various disputes about the effectiveness of contracts that fail to fulfill the obligation to apply for approval,including“not being effective”,“being ineffective”,“effectiveness to be determined”and“being effective”.