效力體系視角下的法律行為成立理論構建

The Construction of the Theory of Existence of Legal Transaction from the Perspective of Effectiveness System

現有的法律行為成立理論聚焦於成立與效力的區分、成立為事實判斷和成立要件，並未關注不成立，未能明晰成立與不成立的效果與功能，導致理論的不自恰和法條解釋基礎的缺失。這些問題的解決需要在效力體系的視角下構建法律行為成立理論。基於我國法的具體規定，在非決議的法律行為中，不成立具有和無效不同的效果，成立具有和有效不同的效果。不成立否定行為的存在及其意思自治意義，成立則意味著法律認可當事人行為具有意思自治上的重要性，是法律行為全部規範的適用前提。據此，成立是法律行為效力評價體系的一部分，並非事實判斷，而是法律判斷。重塑後的成立理論要求成立要件符合准入門檻低、由法律強制規定、不成立會導致無任何法律行為效力可能等標準。

The current theories on the existence of legal transactions focus on three aspects: the distinction between existence and effectiveness, the nature of the judgment about the existence, the prerequisites of existence. However, these statements are defective. The existence of a legal transaction itself does not produce formal binding effect. Formal binding effect is the result of valid legal transaction. It is difficult to distinguish between the effect of invalid legal transaction and the effect of legal transaction non existing. All these lead to at least two problems. One is that the theoretical distinction between existence and effectiveness of legal transaction disappears. The other one is that the interpretation of some controversial provisions is meaningless due to lack of foundation. In order to solve theoretical and practical problems above mentioned, it is necessary to determine the unique effects and functions of inexistence and existence respectively, thus systematically constructing the theory of existence of legal transactions from the perspective of the effectiveness system of legal transactions. From the perspective of the effectiveness system, the inexistence of legal transactions needs to be compared with invalidity of legal transactions. There are three forms of the relationship between inexistence and invalidity, namely, inexistence and invalidity are equivalent, the causes of inexistence and those of invalidity are different, and the legal effects of inexistence and those of invalidity are different. In the circumstances of national law, there are two forms of relationships above mentioned the difference between the inexistence of resolution and the invalidity of resolution is the reasons of each, while the difference between the inexistence of general legal transaction and the invalidity of that is the effects of each. As to the latter case, it is reflected in the follow situations: the performance may cure the invalidity caused by lack of form, and the retroactive effect of invalid legal transactions may be limited. Based on the distinction between inexistence of legal transaction and invalid transaction, the function of existence of legal transaction could be established. The existence of legal transaction implies that the parties' activities is legally relevant in private autonomy, thus the activities could be treated as legal transaction. The logic of provision application and interpretation of legal transactions and that of other acts is completely different. The existence of legal transaction is the basis and prerequisite for the application of all rules of legal transactions. Accordingly, existence is not a factual judgment, but a legal judgment. Existence and inexistence are included in the effectiveness system, which will form a three-level effectiveness system of legal transactions, i. e. existence, validity and effect. The reshaped theory of existence is the premise for explaining the prerequisites of existence. Since inexistence would completely negate the private autonomy, but invalidity may still partly reserve the autonomy, therefore, the prerequisites of existence should be established to allow the most of activities enter the threshold of legal transaction. The existence of legal transaction means that the activities are legally relevant, thus the prerequisites should be set by law and cannot be agreed upon by the parties. Written form and delivery could serve as prerequisites only if there are special provisions. When written form is not prerequisite for existence of legal transaction, the transaction that lacks written form shouldn't be judged direcly as invalid, but should be judged in the same way as the judgement of invalidity of illegal transactions.