(1) Qualification examination of contract subject
Whether the subject of the contract has the qualification to sign and perform the contract is the first concern of the contract review, which involves the legality of the transaction and the validity of the contract. This review point also has the greatest impact on the lawyer's professional reputation, because this is the minimum content that lawyers should know.
If the contractor is a legal person, the review points in this respect should at least include the following contents:
(1) whether it has a Business License for Enterprise as a Legal Person;
② Whether the business license of the enterprise as a legal person is legal and valid, including whether it has passed the annual inspection;
③ Whether the business scope and mode in the Business License of Enterprise as a Legal Person are in conformity with the contract;
(4) Whether some special industries such as restricted operation and franchising have corresponding business licenses;
(5) whether the law has operational restrictions on the subject matter and whether it can be legally circulated.
(2) Review the legality of the contract.
Legitimacy here means that the contents of the contract should conform to the legal provisions as far as possible, involving the contract name, agreed terms and terms. , mainly to avoid these contents in the contract conflict with the legal provisions. Includes the following contents:
(1) Whether the contract name is consistent with the nature of the contract, and whether it will lead to misunderstanding of the nature of the contract;
(2) Whether the agreement in the terms of the contract conflicts with the statutory mandatory obligations;
③ Whether the meanings of terms used in the contract are completely consistent with relevant laws, judicial interpretations and technical specifications;
④ Whether the cited regulations or technical specifications are still valid and whether the latest version is valid.
(3) Review the practicability of the contract terms.
A contract with practical clauses includes not only the basic clauses necessary for exchange, but also the clauses formulated by combining the subject matter of the contract, the nature of the contract, the purpose of the contract, the characteristics of the other party, the contract background and other factors. These terms are the refinement and extension of the basic terms of the contract. It is a practical clause that foresees possible problems in a forward-looking way and agrees in advance, mainly including the following contents:
(1) Examining whether there are practical clauses aimed at the unique risks of the transaction;
(2) to examine whether there are practical clauses established according to the characteristics of breach of contract;
(3) to examine whether there are practical clauses established according to the characteristics of the subject matter;
(four) to examine whether there are practical terms established according to the characteristics of the transaction object;
⑤ Review whether there are provisions to improve the practicability of dispute jurisdiction.
(4) review the clarity of rights and obligations
Unclear rights and obligations are hidden dangers of contracts, which seriously affect the security of transactions. Therefore, it is necessary to review the compatibility between clauses and make clear and appropriate provisions on the expression of rights and obligations, the scope of breach of contract, the sanctions for breach of contract, and the way of imputation. Mainly focused on the following points:
(1) Whether the terms are well coordinated, that is, whether there are conflicts and poor connection;
(2) Whether the connotation and extension of the expression are appropriate and whether there are any clauses with actual legal significance;
(3) whether the assumptions in reasoning have exhausted all possibilities and left nothing out;
(4) Whether rights and obligations and breach of contract can be recognized, that is, we can draw a conclusion through simple judgment;
⑤ Whether the annex can clearly supplement the rights and obligations in the text.
5] Review of the satisfaction of trading demand.
The terms of the contract should not only meet the needs of the transaction itself, but also serve the purpose of the transaction at a more macro level. It is not only convenient to obtain the desired products or services smoothly, but also convenient to realize the macro-transaction purpose of the enterprise and safeguard the interests of all parties from a higher level. Although this point has partially exceeded the scope of regular review, it is also a problem that must be considered. The main points of this review mainly include:
① Judging whether the transaction can achieve the transaction purpose from the technical details of the subject matter of the contract;
② From the terms of the contract, we can see whether the transaction can achieve the purpose of the transaction.
Second, the external form of the contract review
The external form of contract is mainly the quality of contract expression, which has nothing to do with legal provisions, but the comprehensive embodiment of language expression ability, logical reasoning ability and overall thinking ability. It is the carrier and external embodiment of the contract content. Although it is not a direct legal issue, it will also have direct adverse legal consequences. It mainly includes five aspects: structural system, functional module, thinking logic, expression accuracy and layout:
(1) structural system clarity review
This kind of review is unnecessary in contract review, but when a larger contract or a contract concluded in the form of "list clauses" needs to be revised after contract review, it is often necessary to see or rearrange its structural system first, and then conduct high-quality review on the basis of understanding its structure. Mainly includes the following contents:
(1) Check the larger components of the contract and judge whether the division of these components is reasonable;
(2) divide the larger components into smaller components until they are divided into specific clauses;
③ Mark the titles of different levels of content in a certain order to form a title system.
(2) Review the integrity of the contract terms.
① Whether the titles at all levels in the contract are appropriate and whether the title system at all levels is clear and reasonable;
(2) Whether the eight basic contract terms listed in the Contract Law are available;
③ Whether the peripheral clauses regulating the order of the contract itself are complete, such as whether it is convenient for notification and delivery.
(3) Review the rigor of overall thinking.
The rigor of a contract is related to the requirements of the parties, the importance of the contract and the risks of the contract. Not all contracts should be reviewed according to the highest standards, but their principles should be understood. Otherwise, an imprecise contract may lead to very serious consequences, and it is also prone to practice risks.
① Whether there is topic loss caused by improper cohesion, or whether there is no cohesion at all;
(2) Whether there is a problem that the assumption range is too narrow, which affects the rigor;
(3) Whether there are conflicts arising from overlapping rights and obligations between clauses and ambiguities arising from overlapping.
(4) Testing the accuracy of language expression
The accuracy of language expression of contract terms involves vocabulary selection, syntax, grammar, style, language ambiguity and many other aspects. Considering the professional image and necessary qualities, the focus of this review includes:
(1) whether the style of writing is correct and whether the use of punctuation marks is standardized;
(2) Whether the terminology is accurate, whether the scope of expression is accurate, and whether the degree of words can be objectively measured;
③ Whether the subject of behavior is clear and whether the reference between sentences is clear;
(4) Whether the sentences are professional and standardized, whether the relationship between sentences is accurate and whether the expression method is concise.
5] Review of layout quality satisfaction
Most page quality problems do not belong to the scope of lawyer's contract review, and generally belong to "extra work" in contract business. However, the quality of layout affects people's subjective impression of contracts and contract makers. In order to reflect the overall professional quality of the lawyer industry, the contract should be reviewed from the following aspects:
① Whether the typesetting meets the typesetting requirements of Chinese;
② Whether the font, font size, kerning and line spacing are reasonable and elegant;
③ Whether the appellations at all levels conform to the tradition and are easy to identify.