Judicial cognizance standard of ＂simultaneous contract＂

　　First, the specification and practice status of contract concurrence

　　Contract concurrence means that several contracts are "combined without losing their individuality", that is, according to the intention of the parties, multiple contracts are combined with a certain dependency, and the effectiveness of one contract depends on the effectiveness of another contract. When several contracts form a joint contract, if one contract is not established, invalid, cancelled or dissolved, the other contract shall share its fate.

　　Contract concurrence is a new form of contract created to meet the different interests of the parties, which is gradually fixed and typed with the transaction form. For example, the provisions on financial leasing contracts in the Contract Series of the Civil Code continue the contents of the Interpretation of the Supreme People’s Court on Applicable Legal Issues in the Trial of Disputes over Financial Leasing Contracts (hereinafter referred to as the Judicial Interpretation of Financial Leasing Contracts). According to Article 754 of the Civil Code, when the sales contract concluded between the lessor and the seller is dissolved, confirmed as invalid or revoked, and the sales contract cannot be re-concluded, the lessor or lessee may dissolve the financial lease contract, that is, the financial asset sales contract and the financial asset lease contract shall share the same fate in effect. Another example is the 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 (hereinafter referred to as the Judicial Interpretation of Commercial Housing Sales Contracts), which stipulates that the purpose of the commercial housing secured loan contract cannot be achieved because the commercial housing sales contract is confirmed to be invalid or cancelled or dissolved, and the parties request to dissolve the commercial housing secured loan contract, which should be supported, that is, the commercial housing sales contract and the commercial housing loan contract constitute a contract.

　　In addition to these two judicial interpretations, there are few provisions on the application of the law of simultaneous contract in both legislation and judicial interpretation. In judicial practice, it is extremely difficult to prove that the purpose of the contract cannot be achieved, which is too time-consuming and labor-intensive, and the theory of simultaneous contract can solve disputes more efficiently. According to the relevant judgment documents of China Judgment Document Network, it can be seen that many judges at all levels directly use the theory of simultaneous contract to judge the validity of contracts in their judgments. Moreover, the special judgment rules of contract union are not only embodied in the entity, but also reflected in the procedure. Many judges believe that when several contracts constitute contract union, they should be tried in one case, otherwise the rights and obligations of all parties cannot be clarified. However, at present, the trial ideas of local courts for such disputes have not been unified. In view of this, the judicial determination standard of "simultaneous contract" needs to be clarified.

　　Second, the judicial judgment standard of contract simultaneous.

　　1. The number of contract texts should not be used as a criterion for judging the contract. According to the general theory of academic circles, contracts can be divided into typical contracts and atypical contracts. Nineteen typical contracts stipulated in the Civil Code mainly focus on single transaction and single contract. Modern social and economic exchanges are becoming more and more frequent, and the transaction forms are becoming more and more complicated. Sometimes, the parties have to create new types of contracts in addition to the legal contract types to meet different interests, and atypical contracts have emerged. Atypical contracts can be divided into three types: pure atypical contracts, simultaneous contracts and mixed contracts. Mixed contract and contract combination are quite different from typical contracts that adjust the relationship between a single transaction and a single contract. Mixed contract is still a contract in essence, while contract combination is a combination of several contracts. It can be seen that the number of contractual relationships is very important to judge whether it is a typical contract, a mixed contract or a contract.

　　However, judging the number of contracts cannot be based on the number of contract texts signed by the parties in form. Even if there is only one contract text, it is possible to establish a joint contract. Take the contract of second-hand housing sales contract and intermediary contract as an example. The model of second-hand housing sales contract adopted by many intermediary companies in the market is that the buyer, the seller and the intermediary company agree on the content of second-hand housing sales and the contract of intermediary remuneration and service content in one contract text. Although these two types of contracts are signed in one contract text, although they are two different contractual relationships, Each of them has independent functions of establishing, changing or terminating the relationship of civil rights and obligations, but both of them have an integrated trading function in economy, and their contractual effectiveness affects each other. The invalidity and cancellation of one contract will inevitably affect the effectiveness of the other contract. Therefore, the second-hand housing sales contract and the intermediary contract constitute a joint contract, and the number of contract texts does not affect whether it constitutes a joint contract.

　　2. There is "economic integrity" among several contracts. After searching the China Judgment Document Network, it can be seen that at present, there are the following types of cases in which courts at all levels determine that several contracts constitute a contract: the contract consisting of a commercial housing sales contract and a hotel entrusted management contract; Second-hand housing sales contract and intermediary contract constitute the contract; The contract formed by the commercial housing sales contract and the secured loan contract is simultaneous; The contract formed by the financial loan contract and the pledge supervision contract is simultaneous; The contract formed by the vehicle affiliated contract and the vehicle sales contract is simultaneous; The contract composed of private lending contract and assignment guarantee contract is simultaneous; The contract of consumer contract and credit contract is simultaneous.

　　There is a great difference between contract union and master and slave contracts. Several contracts in contract union have the independence of a single contract, and their establishment and entry into force are not dependent on the master contract as the establishment and entry into force of slave contracts. It is not difficult to see from the main types of simultaneous contracts summarized above that these types all have the common characteristics of integrity for economic purposes. From the perspective of simultaneous contracts, although many contracts may not be unified with each other, and the legal nature of each single contract is also different, no matter from the form of contract signing, the content of contract agreement and the actual way of performance, several contracts are actually mutually conditional and interrelated, and their rights and obligations are inseparable. That is to say, even though the contracts that form a joint contract are independent of each other and their purposes are very different, they all have a common direction and an intention to make one of them better realized.

　　For example, in 53 cases of disputes over pre-sale contracts of commercial housing between Chen Mou et al., judged by Chengdu Intermediate People’s Court and Chengdu Upper Celebrity Investment Company, and in 16 cases of disputes over housing lease contracts between Cheng Moumou et al., judged by Guangyuan Intermediate People’s Court of Sichuan Province and Guangyuan Xinghe Construction Company, the courts all held that although the parties who signed Commercial Housing Sales Contract, Decoration renovation contract and Hotel Entrustment Management Contract were inconsistent, these contracts were integrated in economy, so they were considered to constitute contracts. In the transaction mode of these property-based shops, the rights and obligations of several contracts signed by buyers and developers or affiliated enterprises are inseparable, which jointly realize that buyers purchase houses, and then hand them over to sellers or affiliated enterprises for unified management based on the purchased houses, so as to obtain investment income (actually rent), and developers realize the purpose of obtaining profits from all aspects of the transaction through several closely related contracts. In this kind of transaction, the direct dependence of several contracts and the resulting overall transaction function have been quite objective and typed, which is convenient for judicial practice to clarify the formation of simultaneous contracts through contract interpretation.

　　However, it should be noted that in judicial practice, the term economic integrity is abstract and difficult to judge. The author believes that whether there is economic integrity can be judged from whether there is any correlation between the signing of various contracts. Specifically, taking the Judicial Interpretation of Financial Leasing Contract and the Judicial Interpretation of Commercial Housing Sales Contract as an example, these two judicial interpretations stipulate that the dissolution of one contractual relationship will affect the dissolution of another contractual relationship, on the basis that the parties sign several contracts in order to better realize the main purpose of one of them. If the lessor and the seller sign a sales contract for the financial lease item, it is to realize the lease contract between the lessor and the lessee, and the subject matter of the lease contract is also the subject matter of the sales contract, and the subject matter of the sales contract is selected according to the requirements of the lessee in the lease contract. Another example is that in the contract formed by the commercial housing sales contract and the loan contract, the purchaser borrows money from the bank to pay the final payment of the house, which is also for the smooth performance of the commercial housing sales contract. For another example, in the case where the contract of second-hand house sales and purchase is combined with the intermediary contract, unless the buyer and the intermediary signed an agreement to provide intermediary services, the buyer would not sign a house sales contract with the seller in the service provided by the intermediary.

　　In a word, the purpose of contract simultaneous is to finally realize an overall trading function through the trading chain of several contracts. In order to protect the interests of the parties, judicial practice began to make greater efforts to approach the original features of various transactions in economic practice and the interests of the parties behind them, and clarified some cases of joint contracts through typology and even legislation. Therefore, when trying the disputes of contract association which are not specified in detail in the Civil Code, we can explore the true meaning of the parties in contract association according to the penetrating trial thinking required in the Minutes of the Civil and Commercial Trial Work Conference of the National Court. We should not only pay attention to the independence of the rights and obligations of each contract, but also distinguish the relationship between several contracts that constitute the contract association and the economic integrity, so as to solve the disputes between the parties as soon as possible, effectively reduce the litigation burden of the parties and save judicial resources.

　　(Author: Southwest University of Political Science and Law)