Foreword 20211Civil Code was formally implemented, and the contract law that has been escorting socialist economic construction for more than 20 years was officially abolished. In the future, the terms of the contract will continue to be protected by the Civil Code. The most important thing about a contract is its validity. When we talk about business and do business, we all hope that the contracts we sign are legal and valid, and only valid contracts are completely protected by law. If the contract concluded by the parties fails to take effect due to violation of laws and regulations, it will not only fail to achieve the trading purpose of both parties, but also bear corresponding legal responsibilities because of the defects in the effectiveness of the contract. Therefore, as a market economy transaction law, whether the contract system can really play a role in ensuring transaction safety and promoting transaction efficiency, the contract validity system plays a vital role in it. Therefore, it is necessary to study separately what kind of contract is invalid. Only by knowing the situation and types of invalid contracts can we avoid the invalidity of the contracts we signed.

After the implementation of the Civil Code, there are both similarities and differences between the provisions on the invalidity of contracts and those before. The summary is as follows, for reference only:

First, the Civil Code stipulates that the contract is invalid:

Article 144 A civil juristic act performed by a person without capacity for civil conduct is invalid.

Article 146 A civil juristic act by the actor and the counterpart with false intention is invalid.

The validity of a concealed civil juristic act with false intention shall be handled in accordance with relevant laws and regulations.

Article 153 A civil juristic act that violates the mandatory provisions of laws and administrative regulations is invalid. However, unless mandatory provisions do not invalidate civil legal acts.

A civil legal act that violates public order and good customs is invalid.

Article 154 A civil legal act in which the actor colludes with the counterpart in bad faith and damages the legitimate rights and interests of others is invalid.

Article 505 The validity of a contract concluded by the parties beyond the scope of business shall be determined in accordance with Section 3 of Chapter VI of Part I of this Law and the relevant provisions of this Chapter, and the contract shall not be deemed invalid because it exceeds the scope of business.

Article 508 Where there are no provisions on the validity of a contract in this part, the relevant provisions in Chapter VI of Part I of this Law shall apply.

Article 1260 This Law shall come into force as of 20211. Marriage Law of the People's Republic of China, Inheritance Law of People's Republic of China (PRC), General Principles of Civil Law of People's Republic of China (PRC), Adoption Law of People's Republic of China (PRC), Guarantee Law of People's Republic of China (PRC), Contract Law of People's Republic of China (PRC) and Contract Law of People's Republic of China (PRC).

Therefore, after the implementation of the civil code, the contract law and the general principles of civil law will be invalid. Article 52 of the Contract Law, the situation that the contract is invalid is no longer applicable. The general provisions of the civil code are the inheritance of the general principles of civil law, and the provisions of the civil code on the validity of contracts are the same as those of the general principles of civil law. There are basically no provisions on the validity of contracts in the Civil Code.

Two, the "contract law" provisions of the contract invalid after the implementation of the civil code has changed a lot.

Article 52 of the Contract Law stipulates five situations in which a contract is invalid, namely: (1) one party enters into a contract by means of fraud or coercion, which harms the national interests; (2) Malicious collusion that harms the interests of the state, the collective or a third party; (3) Covering up illegal purposes in a legal form; (4) damaging the public interest; (5) Violating the mandatory provisions of laws and administrative regulations.

In the case of 1 above, after the implementation of the Civil Code, the contract is no longer invalid, but the contract can be revoked; The second situation is embodied in Article 154 of the Civil Code, with a slight adjustment in expression; In the third case, after the implementation of the civil code, the contract is no longer invalid; The fourth and fifth cases are embodied in article 153 of the Civil Code, but the expression has been adjusted.

Three. Provisions of Civil Code on Invalidation of Contract

The contract series of the Civil Code does not uniformly list the cases in which the contract is invalid, but stipulates in Article 508 that "the provisions of Chapter VI of Part I of this Law shall apply if there are no provisions on the validity of the contract in this series", that is, it is determined according to the provisions of Chapter VI of the General Provisions. According to the provisions of Chapter VI of the General Principles, there are five kinds of invalid contracts, which are described as follows:

1. The civil juristic act of a person without civil capacity is invalid. (Article 144 of the Civil Code)

The so-called person without civil capacity refers to: (1) minors under the age of 8; (2) Adults who can't recognize their own behavior; And (3) minors over the age of 8 who can't recognize their own behavior. The inability to recognize one's own behavior refers to the reasons of intellectual and mental health; A person who can't recognize his behavior because of drunkenness is not a person without civil capacity, and he may not claim that his behavior is invalid on this ground.

It should be pointed out that all civil legal acts carried out by persons without civil capacity are null and void.

2. Conspiracy hypocrisy means that the behavior is invalid.

Article 146 of the Civil Code stipulates that the civil legal act carried out by the actor and the counterpart with false intentions is invalid. The validity of a concealed civil juristic act with false intention shall be handled in accordance with relevant laws and regulations.

The typical performance is the "yin-yang contract" in the equity transfer contract. Both parties to the equity transfer signed two equity transfer contracts with different prices due to tax evasion and other reasons. The contract that goes to the industrial and commercial bureau for change registration belongs to "positive contract" and the price is low; What the two parties really implement is another contract (or supplementary agreement or drawer agreement), commonly known as "negative contract". In this case, because the "positive contract" is not the true meaning of the parties, it is invalid; Implicit "implicit contract" belongs to the true intention of the parties, because it does not violate the mandatory provisions of laws and regulations, so the contract is valid.

Another kind of hypocritical behavior is a contract that is not worthy of the name in practice, such as a contract called buying and selling but actually lending.

3. Acts that violate the mandatory provisions of laws and administrative regulations are invalid.

Article 153, paragraph 1 of the Civil Code stipulates that a civil legal act that violates the mandatory provisions of laws and administrative regulations is invalid. However, unless mandatory provisions do not invalidate civil legal acts.

Different from Item 5 of Article 52 of the Contract Law, the above provisions of the Civil Code provide an exception, that is, mandatory provisions do not invalidate civil legal acts. According to the judicial interpretation of the Supreme Court, mandatory clauses are divided into two types: effective and administrative, and only the violation of effective mandatory clauses will lead to the invalidity of the contract.

It should be noted that the contract is invalid only if it violates the mandatory provisions of "laws and administrative regulations". In reality, there are a lot of mandatory provisions in many rules and normative documents, but the contract cannot be deemed invalid just because of "insufficient rank".

4. Civil legal acts that violate public order and good customs are invalid.

Paragraph 2 of Article 153 of the Civil Code stipulates that civil legal acts that violate public order and good customs are invalid. In theory, it is called "back to the vulgar".

The so-called public order and good customs refer to public order and good customs, that is, the social public interest stipulated in Item 4 of Article 52 of the Contract Law. Keeping mistresses, gambling debts, asking for help and other civil legal acts that violate public order and good customs. , given a negative evaluation by the law, is considered invalid. Political order, financial order, etc. Are related to the interests of the unspecified majority and also belong to the category of public order.

In reality, some behaviors violate the mandatory provisions listed in the Regulations. Although the violation of mandatory provisions cannot be regarded as invalid, if these mandatory provisions actually reflect and aim at safeguarding public interests, civil legal acts can be regarded as invalid on the grounds of violating public order and good customs according to the second paragraph of Article 153 of the Civil Code. For example, holding the equity of a securities issuer or holding the equity of a financial institution on behalf of the court will usually be deemed invalid on the grounds of harming the public interest.

5. Malicious collusion to harm the interests of others is invalid.

Article 154 of the Civil Code stipulates that a civil legal act of malicious collusion between the actor and the counterpart that harms the legitimate rights and interests of others is invalid. Compared with the second paragraph of Article 52 of the Contract Law, the above provisions of the Civil Code no longer distinguish the types of subjects whose interests are damaged (state, collective and third party), but are defined as "others" in a unified way.

Because the legitimate rights and interests of civil subjects are protected by law as a whole, as long as the legitimate rights and interests of others are harmed, they should be denied by law, and there is no need to distinguish different types. Malicious collusion harms the interests of others. Common behaviors are: Party A and Party B are shareholders of the company, Party B and Party C collude maliciously to forge the share transfer contract, and Party B forges the signature of Party A, transfers the shares to Party C, and goes through the industrial and commercial change registration.

It is worth noting that malicious collusion can only be formed if there is a connection of meaning between the actor and the relative, and * * * is malicious. If only one party has subjective malice to harm the rights and interests of others, and the other party does not know or knows but has no subjective malice, it does not constitute malicious collusion. For example, A sells the house to B first, signs the contract but hasn't transferred it, and then sells the house to C at a high price to complete the transfer; Even if C knows that A has the behavior of selling one room and two houses, there is nothing wrong with C subjectively paying a high price to buy a house, which does not constitute malicious collusion.

Four, in addition to the general provisions of the Civil Code, there are provisions that stipulate that contracts or special clauses and special contracts are invalid.

civil law

Article 388 To establish a security interest, a security contract shall be concluded in accordance with the provisions of this Law and other laws. Guarantee contracts include mortgage contracts, pledge contracts and other contracts with guarantee functions. The guarantee contract is a subsidiary contract of the main creditor's rights and debts contract. If the principal creditor's rights and debts contract is invalid, the guarantee contract is invalid, unless otherwise stipulated by law.

If the debtor, guarantor and creditor are at fault after the guaranty contract is confirmed to be invalid, they shall bear corresponding civil liabilities according to their faults.

Article 497 A standard clause is invalid under any of the following circumstances:

(1) The provisions of Section 3 of Chapter VI in Part I of this Law and Article 506 are invalid;

(2) The party providing the standard terms unreasonably exempts or lightens its responsibilities, aggravates the responsibilities of the other party or restricts the main rights of the other party;

(3) The party providing the standard terms excludes the other party's main rights.

Article 505 The validity of a contract concluded by the parties beyond the scope of business shall be determined in accordance with Section 3 of Chapter VI of Part I of this Law and the relevant provisions of this Chapter, and the contract shall not be deemed invalid because it exceeds the scope of business.

Article 506 The following exemption clauses in the contract are invalid:

(1) Causing personal injury to the other party;

(2) Causing property losses to the other party due to intentional or gross negligence.

Article 682 A suretyship contract is an accessory contract to the principal creditor's rights and debts contract. If the principal creditor's rights and debts contract is invalid, the guarantee contract is invalid, unless otherwise stipulated by law.

If the debtor, guarantor and creditor are at fault after the guaranty contract is confirmed to be invalid, they shall bear corresponding civil liabilities according to their faults.

Article 705 The lease term shall not exceed 20 years. More than twenty years, the excess part is invalid.

At the expiration of the lease term, the parties may renew the lease contract; However, the agreed lease term shall not exceed twenty years from the date of renewal.

Article 737 A financial lease contract concluded by the parties with a virtual lease item is invalid.

Article 850 A technology contract that illegally monopolizes technology or infringes on the technological achievements of others is invalid.

Article 107 It is forbidden to buy or sell human cells, human tissues, human organs or human remains in any form.

A sale in violation of the provisions of the preceding paragraph is invalid.

Five, the current effective judicial interpretation, the specific provisions of the law on the invalidity of the contract

1. the Supreme People's Court's interpretation on some issues concerning the application of law in the trial of mining rights disputes (revised in 2020).

Article 5 If a contract is signed for the exploration and mining of mineral resources by others without obtaining a license for exploration and mining of mineral resources, the people's court shall legally declare the contract invalid.

Article 12 The people's court shall support the request of the parties to confirm that the mining right lease contract will take effect as of the date of its establishment according to law.

If the mining right lease contract stipulates that the mining right owner only collects rent and contract fees, abandons mine management, fails to perform legal obligations such as safe production and ecological environment restoration, and does not bear corresponding legal responsibilities, the people's court shall determine the contract as invalid according to law.

Article 18 If the parties agree to explore and mine mineral resources in nature reserves, scenic spots, key ecological function areas, eco-environment sensitive areas and fragile areas, which violates the mandatory provisions of laws and administrative regulations or damages the public interests of the environment, the people's court shall declare the contract invalid according to law.

2. Interpretation of the Supreme People's Court on the Applicable Law in the Trial of Rural Land Contract Disputes (revised in 2020).

Article 13 Without the consent of the Employer, the contractor's assignment contract is invalid. However, the employer cannot give reasons for not agreeing or delaying the declaration.

3. the Supreme People's Court's Interpretation on the Applicable Law in the Trial of State-owned Land Use Right Contract Disputes (revised in 2020).

Thirteenth cooperative real estate development contract if one of the parties has the qualification of real estate development and operation, the contract is deemed to be valid.

If both parties are not qualified for real estate development and operation, this contract is invalid. However, if one of the parties has obtained the qualification of real estate development and operation before the prosecution or has cooperated to establish a real estate development enterprise with the qualification of real estate development and operation according to law, the contract shall be deemed valid.

4. Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Disputes over Commercial Housing Sales Contracts (revised in 2020).

Article 2 If the seller fails to obtain the pre-sale permit certificate of commercial housing, the pre-sale contract concluded with the buyer shall be deemed invalid, but if the seller obtains the pre-sale permit certificate of commercial housing before the prosecution, it may be deemed valid.

Article 7 If the buyer requests to confirm that the contract for the sale of commercial housing concluded between the seller and a third party is invalid on the grounds that the seller and the third party have maliciously colluded to conclude another contract for the sale of commercial housing and delivered it for use, it shall be supported.

5. Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Disputes over Urban Housing Lease Contracts (revised in 2020).

Article 2 The lease contract concluded between the lessor and the lessee for the house that has not obtained the construction project planning permit or has not been built in accordance with the provisions of the construction project planning permit is invalid. However, if a construction project planning permit is obtained before the end of the debate in the court of first instance or the construction is approved by the competent department, the people's court shall deem it valid.

Article 3 The lease contract concluded between the lessor and the lessee for a temporary building that has not been approved or built according to the approved contents is invalid. However, before the end of the debate in the court of first instance, if the construction is approved by the competent department, the people's court shall deem it valid.

If the lease term exceeds the service life of the temporary building, the excess will be invalid. However, if the term of use is extended with the approval of the competent department before the end of the debate in the court of first instance, the people's court shall determine that the lease period within the extended term of use is valid.

6. Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases (revised in 2020).

Thirteenth in any of the following circumstances, the people's court shall consider the private loan contract invalid:

(a) Obtaining loans from financial institutions for lending;

(2) Lending money from other profit-making legal persons, raising funds from employees of the unit or illegally absorbing funds from public deposits;

(3) Lenders who have not obtained the loan qualification according to law provide loans to unspecified social objects for the purpose of making profits;

(four) the lender knows or should have known in advance that the borrower's loan is used for illegal and criminal activities, but still provides loans;

(5) Violating the mandatory provisions of laws and administrative regulations;

(6) Violating public order and good customs.

7. Interpretation of the Supreme People's Court on the Applicable Law in the Trial of State-owned Land Use Right Contract Disputes (revised in 2020).

Article 2 The land use right transfer contract concluded by the Development Zone Management Committee as the transferor and transferee shall be deemed invalid.

Before the implementation of this interpretation, the land use right transfer contract concluded by the Administrative Committee of the Development Zone as the transferor and the transferee can be recognized as valid if it was ratified by the competent department of natural resources of the people's government of the city or county before the prosecution.

8. Interpretation of the Supreme People's Court on the Legal Issues Applicable to the Trial of Construction Contract Disputes (I) (revised in 2020)

Article 1 A construction contract for a construction project shall be deemed invalid in accordance with the provisions of the first paragraph of Article 153rd of the General Principles of the Civil Law under any of the following circumstances:

(a) the contractor has not obtained the qualification of the construction enterprise or exceeded the qualification level;

(2) The unqualified actual constructor borrows the name of a qualified construction enterprise to carry out the construction;

(three) the construction project that must be tendered has not been tendered or the tender is invalid.

If the contractor subcontracts a construction project or illegally subcontracts it, the construction contract signed with others shall be deemed invalid in accordance with the provisions of the first paragraph of Article 153 and the second and third paragraphs of Article 791 of the General Principles of the Civil Law.

Article 2 The scope, time limit, project quality, project price and other substantive contents of the construction contract signed by the tenderer and the winning bidder are inconsistent with the winning contract, and if one party requests to determine the rights and obligations according to the winning contract, the people's court shall support it.

In addition to the winning contract, the tenderer and the winning bidder shall separately sign contracts for purchasing construction property, building supporting facilities for housing free of charge, making profits and donating property to the construction unit. , thus reducing the project price in disguise. If one party requests to confirm that the contract is invalid on the grounds of deviating from the substantive content of the winning contract, the people's court shall support it.

Article 3 If a party requests to confirm that the construction contract of a construction project is invalid on the grounds that the employer has not obtained the planning approval procedures such as the construction project planning permit, the people's court shall support it, except that the employer has obtained the planning approval procedures such as the construction project planning permit before bringing a lawsuit.

If the employer can go through the formalities of examination and approval but fails to do so, the people's court will not support the request to confirm that the construction contract of the construction project is invalid on the grounds of not going through the formalities of examination and approval.

9. Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Futures Dispute Cases (revised in 2020)

Article 13 A futures brokerage contract is invalid under any of the following circumstances:

(a) no subject qualification to engage in futures brokerage business;

(2) Customers who are not qualified for futures trading engage in futures trading;

(3) Violating the mandatory provisions of laws and administrative regulations.

10 several provisions of the Supreme People's Court on the trial of certificates of deposit disputes (revised in 2020)

Article 8 Determination and treatment of pledge of certificates of deposit

Certificates of deposit can be pledged. If the holder of the certificate of deposit pledges with a forged or altered false certificate of deposit, the pledge contract is invalid. If a party who accepts a false certificate of deposit pledge sues a financial institution on the grounds of certificate of deposit pledge and demands priority in compensation, the people's court shall rule to reject his claim and inform him that he can sue the pledger separately.

If the holder of the certificate of deposit pledges with a certificate of deposit issued by a financial institution that has no actual deposit or is inconsistent with the actual deposit in order to defraud or occupy another person's property, the pledge relationship is invalid. Where the person who accepts the pledge of the certificate of deposit brings a lawsuit,