合同有效与合同生效辨析

我国《合同法》第44条"依法成立的合同,自成立时生效"的规定是有缺陷的。合同有效和生效作为两种不同的合同效力形态,至少存在两点区别:(1)在构成要件上,合同生效不仅包括合同有效要件,而且还应包括法律规定或当事人约定的生效条件或期限成就这一要件。(2)在具体内容上,合同有效,只产生保护效力和救济效力,不产生履行效力,其效力是不完整的;而合同生效,不仅产生保护效力和救济效力,而且产生履行效力,其效力是完整的。当然,合同有效和合同生效也有一定的关联,因为只有合同有效成立后才谈得上合同生效。合同生效对应于合同的未生效,合同生效是合同有效的下位概念。

Identifying Contract Validity and Contract Validation

It is a defective provision specified in Article 44 of our Contract Law,"A contract which proceeds legal process is claimed to take effect since it comes into exist." . Contract validity and contract validation as two forms differ in at least two aspects: for formation requirements, contract validation should include not only the contract validity but also the conditions of going into effect and term achievement stipulated by laws or reached by parties; for the details, contract validity only means efficacies for shielding and relief, without functions of performance, however, while possessing the above effects, contact validation generates the performance force, thereby acquiring a complete legal efficacy. Certainly, contract validity and contract validation have certain relevancies, for the former remains the pre-condition of the latter. Contract validation corresponds to its non-validation, thus being an inferior notion for contract validity.