试论合同成立与合同生效.docxVIP

PAGE I PAGE I 试论合同成立与合同生效 内 容 摘 要 随着市场经济的深入发展，合同运用得越来越频繁，大到动辄几千万的合同，小到在超市购买商品的小票，都是保障当事人合法权利的凭证。但是在合同订立的过程中，可能会出现合同成立但并不生效，甚至合同因为订立过程中的问题导致合同不成立的，都是无法达到当事人预期中的保障效果。由于合同成立与合同生效所产生的法律效力不同，其产生的责任也有很大的不同，有些时候当事人的权益并未得到更好的保障。本文将从合同成立与合同生效两者的概念入手，从其性质、时间、构成要件、产生的法律效果等来探索两者的区别，并研究两者之间的关系，从而突显合同成立与合同生效的区分在《合同法》的重要性，就司法案件着手探析立法上和司法实践中所存在的问题，提出完善处理合同成立与合同生效机制的建议。 关键词：合同成立；合同生效；构成要件；司法实践  On the Establishment and Effectiveness of Contract Abstract With the in-depth development of the market economy, contracts are used more and more frequently, ranging from tens of millions of contracts to the receipt of goods purchased in supermarkets, all of which are documents to protect the legal rights of the parties concerned. However, in the process of concluding the contract, it may happen that the contract is established but does not take effect. Even if the contract is not established due to problems in the process of conclusion, it cannot achieve the expected protection effect of the parties. Due to the different legal effects produced by the establishment of a contract and the entry into force of the contract, their responsibilities are also very different, and sometimes the rights and interests of the parties are not better protected. This article will start with the concepts of contract formation and contract entry into force, explore the differences between the two from their nature, time, constitutive requirements and legal effects, and study the relationship between the two, so as to highlight the importance of the distinction between contract formation and contract entry into force in the Contract Law, analyze the existing problems in legislation and judicial practice on judicial cases, and put forward suggestions on improving the mechanism of contract formation and contract entry into force. Key words: contract formation; entry into force of contract; elements of constitution; judicial practice 目 录 TOC \o 1-3 \h \u 内 容 摘 要 I Abstract II 一、 引 言 1 （