Abstract:
12 of the Judicial Interpretation of the General Provisions of Contract Compilation explicitly states that a contract with unfulfilled obligations of approval procedures is deemed as established but not yet effective, possessing formal binding force. This article divides the allocation of liabilities into three tiers.Firstly, in cases where a party fails to fulfill its obligation of approval procedures, and the other party applies for termination of the contract but does not meet the requirements for the statutory right of termination stipulated in Article 563 of the Civil Code, the judicial interpretation creates a new statutory right of termination. The claim for compensation upon termination of the contract differs from the liability for breach of a pre-contract, as it refers to the liability for culpa in contrahendo.Secondly, if the court orders a party to fulfill the obligation of approval procedures and the party refuses to comply, Article 159 of the Civil Code may be applied analogously, treating the contract as effective, and holding the party liable for the breach of the entire contract. This type of breach liability carries a punitive nature.Thirdly, when an administrative authority refuses to approve a contract due to the fault of the parties, and the Judicial Interpretation of the General Provisions of Contract Compilation does not explicitly specify whether the contract can be terminated in such circumstances, reference can be made to Article 40 of the Minutes of the Ninth National Civil and Commercial Judicial Work Conference, which allows parties to terminate the contract and seek compensation based on their fault. The scope of compensation, as stipulated in Article 157 of the Civil Code, encompasses both the loss of certain benefits and the loss of opportunity interests. The latter is not fixed and requires assessment and judgment based on the degree of fault of the parties and the causal relationship with the administrative approval process.