The difference between incorporation and validation, incorporation and validity

The formation of a contract is a factual act, as long as the parties agree on the expression of intent. In the case of a written contract, if the contract is concluded by the written contract, the contract shall be formed when both parties sign or affix their seals. Where the parties conclude a contract in the form of letters, data messages, etc., they may request the signing of a confirmation before the contract is concluded.

The contract is concluded when the confirmation is signed. If the law or the parties have special provisions or agreements on the procedures for the formation of the contract, the time for the completion of the provisions or agreements is the time when the contract is concluded.

The entry into force of a contract means that the contract has been legally affirmed after its formation and is binding on the parties. A contract that has not yet entered into force, and the parties have not fulfilled their obligations under the contract.

So the contract is formed ≠ the contract comes into effect!! After the contract is formed, the contract does not necessarily have legal effect, and if the contract is in force, then the contract must have been formed.

It is not that the contract is binding on both parties, and signing an invalid contract may just be a "bamboo basket for water"! For example, if the subcontractor of the construction project of our country does not have the corresponding qualifications, it will affect the validity of the contract, and after the invalid subcontract is signed, the subcontractor will not be able to obtain the profit part of the subcontract.

After the contract is concluded, there are three situations according to whether the contract can take effect:

1. After the contract is established, the contract will take effect immediately;

2. After the contract is established, the contract is invalid due to violation of the relevant provisions of laws and regulations;

3. After the contract is established, the validity is in a pending state: conditional contracts, contracts with a time limit, contracts that need to be registered and approved before they can take effect, contracts that can be changed and revoked, etc.

If the contract cannot be validated, both parties to the contract shall be liable for negligence in the contract according to their respective fault liabilities.

Of course it makes sense. For example, in the case of maintenance and inheritance, an agreement can be signed between parents and children, and inheritance rights can only be realized if the children have fulfilled their obligation to support. A legal act arises, but it does not take effect until he has fulfilled his maintenance obligations.

In fact, this is the case for a large part of the conditional legal acts, which only take effect when the conditions attached are established. So this is a very important legal clause that you often encounter in life.

For example, a conditional contract is formed from the time the contract is concluded. But then the contract does not come into force, and only when the conditions attached to it are fulfilled.

If the conditions are fulfilled and not performed, it is a breach of contract.

Differences: (1) The constituent elements are different. (2) The time of occurrence is different. (3) The legal effect is different. (4) The legal consequences are different.

Legal analysisThe difference between establishment and entry into force is in the following aspects: (1) The constituent elements are different. The sign of the formation of a contract is that the parties agree on their intentions; And the entry into force of the contract is divided into several categories:

First, a contract established in accordance with the law takes effect from the time of establishment, that is, the parties express the same intention, and the contract is established and takes effect at the same time. Second, in addition to the agreement of the parties, if the formalities such as approval and registration shall be completed in accordance with the provisions of laws and administrative regulations, it shall take effect when the statutory formalities are performed. (2) The time of occurrence is different.

If the contract is valid, it must have been established, but if the contract is formed, it may not be effective. That is, a contract established in accordance with the law shall take effect from the time of establishment, but if the contract requires approval and registration to take effect as stipulated by laws and administrative regulations, it must be approved and registered before it can take effect. (3) The legal effect is different.

The legal effect of the formation of the contract is that the offeror shall not withdraw the offer, and the promisor shall not withdraw the commitment, but the rights and obligations of the offeror and the promisor are still not recognized by law and are still in an uncertain state. (4) The legal consequences are different. Therefore, if the contract is not established, the legal liabilities arising only involve civil liabilities such as liability for negligence in contracting and return of property, but do not give rise to other legal liabilities; An invalid contract, on the other hand, is fundamentally contrary to the will of the state in nature, so it not only gives rise to civil liability, but also may give rise to administrative liability or criminal liability.

Legal basisArticle 502 of the Civil Code of the People's Republic of China: A contract established in accordance with law shall take effect upon its establishment, unless otherwise provided by law or otherwise agreed by the parties. In accordance with the provisions of laws and administrative regulations, if the contract shall go through formalities such as approval, follow those provisions. If the failure to go through the formalities such as approval affects the effectiveness of the contract, it does not affect the performance of the provisions of the contract such as the application for approval and the validity of the relevant clauses.

If a party who should go through formalities such as applying for approval fails to perform its obligations, the other party may request that it bear responsibility for violating such obligations. Where, in accordance with the provisions of laws and administrative regulations, the modification, transfer, or termination of a contract shall go through formalities such as approval, the provisions of the preceding paragraph shall apply. Article 490:Where the parties conclude a contract in the form of a written contract, the contract shall be concluded when both parties sign, affix their seals or press their fingerprints.

The contract is formed when one of the parties has fulfilled its primary obligations and the other party has accepted it before signing, stamping or fingerprinting. When laws or administrative regulations stipulate or the parties agree that the contract shall be concluded in written form, and the parties do not use the written form but the party has performed its main obligations and the other party accepts it, the contract shall be established.

Legal analysis: A contract can be signed by both parties and established, but it can be invalid because it does not meet the legal requirements, and after the contract is established, it meets the requirements for legal validity, then the contract is protected by law and the contract takes effect.

Legal basis: Article 465 of the Civil Code of the People's Republic of China Contracts established in accordance with law are protected by law. A contract established in accordance with the law shall only be binding on the parties, unless otherwise provided by law.

Legal analysis: the formation of a contract means that the parties have reached an agreement on their intentions; The entry into force of a contract means that after the contract is established, it is legally affirmatively evaluated, resulting in a legal effect that changes the intention of the parties. The premise for the contract to come into force when the contract is formed.

The purpose of the parties to conclude the contract is to make the contract effective and binding, so as to realize the rights and interests stipulated in the contract; If the contract cannot be effective, the contract is a dead letter, and the parties will not be able to achieve the purpose of the contract.

Legal basis: Labor Contract Law of the People's Republic of China

Article 32 Where a worker refuses to be commanded by the management of the employer in violation of rules and regulations or compels him to work at risk, it shall not be deemed to be a violation of the labor contract. Workers have the right to criticize, report and accuse the employer for working conditions that endanger their lives and health.

Article 34 In the event of a merger or division of an employer, the original labor contract shall continue to be valid, and the labor contract shall continue to be performed by the employer who inherits its rights and obligations.

Legal analysis: If a conscious act of representation has the effect of expression, then the expression of intent is valid, and its effectiveness distinguishes whether there is a counterparty, and if there is a counterparty, the situation that the counterpart knows or should know takes effect; if there is no counterpart, it will take effect when it is completed; The expression of intent made in the announcement shall be issued and take effect.

Legal basis: Civil Code of the People's Republic of China

Article 137: Expressions of thought made in the form of dialogue take effect when the counterpart becomes aware of their contents. Expressions of intent made in a non-dialogical manner shall take effect when they reach the light of the counterpart. Where an expression of intent in the form of a data message is made in a non-dialogue manner, and the counterparty designates a specific system to receive the data message, the data message shall take effect when it enters the specific system; Where a specific system is not specified, the counterparty knows or should know that the data message enters its system.

Where the parties have otherwise agreed on the effective time for an expression of intent in the form of a data message, follow that agreement.

Article 138:Where there is no expression of intent by the counterpart, it takes effect when it is completed. Where the law provides otherwise, follow those provisions.

Article 139: Expressions of intent made by way of public announcement take effect when the announcement is published.