论商事交易中的报批义务

The Application for Approval Obligations in the Commercial Transaction

某些特定的商事交易行为,需要经过行政审批。行政审批是这类合同的特别生效要件,未经批准的合同已成立但未生效。报请批准系合同当事人向行政机关提出的申请,报批义务并非行政法上义务。为启动行政审批程序,当事人会就报批事项作出约定,其效力不受作为主合同特别生效要件的行政审批的影响。报批义务是依据报批约定产生的合同义务,而非先合同义务。履行报批义务人应当贯彻最大努力原则,完满地履行报批合意约定的全部义务,不得在行政机关作出决定前自行放弃。报批义务人不履行报批义务时,权利人可以请求其继续履行或者选择自行报批;也可以选择解除报批约定或者解除主合同。不履行报批义务造成的损失属于机会利益的丧失,在未针对不履行报批义务约定违约责任时,可以参照适用合同中约定的违反同类型义务的违约责任。

For some specific commercial transactions,administrative approval is a special requirement for this kind of contract to take effect,and the unapproved contract has been established but has not taken effect.The application for approval is an application submitted by the parties to the contract to the administrative organ,and the obligation to submit for approval is not an administrative law obligation of the parties.The obligation to submit for approval is the contractual obligation arising from the agreement to submit for approval,rather than the pre-contract obligation.The validity of the agreement for approval shall not be affected by the administrative examination and approval as a special requirement for the effectiveness of the main contract.If the applicant fails to perform the obligation,the right holder may request the applicant to continue to perform the obligation or choose to submit the application for approval by himself.The right holder may also choose to rescind the agreement on approval or the main contract.Failure to perform the obligation to submit for approval is a loss of opportunity benefits.If the liability for breach of contract is not agreed upon for failure to perform the obligation to submit for approval,the liability for breach of the same type of obligation as stipulated in the applicable contract may be referred to.