合同成立与生效的区分与要件

Distinguish and Essentials of the Establishment and Validity of Contracts

我国传统使用的合同成立要件与生效要件认定可能会致使认定合同实际状态时产生误解,与《合同法》和《民法总则》关乎合同及法律行为依法成立即生效的规定相背离。虽一般情形下依法成立合同即生效力,但鉴于合同成立与生效承载着的不同价值,合同成立与生效仍有二分必要。传统使用的成立生效要件会造成前述困扰,故合同成立生效要件体系应重构,采用成立要件、特别生效要件和有效障碍事由的三阶层划分为宜。

The essentials of the establishment and validity of contracts we general use may cause some confuse when judging contracts’ effectiveness which is deviated from the intension of Contract Law of the People’s Republic of China and General Rules of the Civil Law of the People’s Republic of China, which stipulate that contracts and legal acts to take effect at the time of its establishment. It is necessary to distinguish them although the contracts take effect at the time of its establishment under normal circumstances, due to the different values of establishment and validity of the contract carring out. The essentials of the establishment and validity of a contract we general use may cause the confusion mentioned above, so we have to reconstruct the system of the essentials of the establishment and validity of contracts. It is appropriate to adopt the three tiers theory which divided the essentials into the essentials of establishment, special effective essentials and effective obstacles.