How to Perfect the Perfect Contract —— Reading Lawyer Wu's The Perfect Contract

Emerson, a famous American thinker, once said: The real meaning of the law people talk about is wealth. A successful transaction requires both the drive of interests and the recognition of rules. Although friends who agree with each other have mixed feelings and people who know each other are opportunistic, the initial agreement of interests does not mean the final realization of wealth expectations. When you are in a bustling shopping mall, of course, both parties to the transaction should be interested in each other, but they should also avoid fickleness. In black and white, the transaction details are fixed in a repeatable way, which is an ancient way to confirm that the wealth expectations of both parties can be realized in the expected way. However, besides clearing the money and goods, there are many trading purposes that cannot be covered by a simple agreement with only time, person and place. In the era of commodity economy with complicated interests, a perfect contract is no longer just a written declaration of simple axioms such as paying off debts and taking it for granted, but confirms and sorts out all relevant contracts in the form of legal relations. In modern society, contract, as the most important market transaction subject, is an important means for enterprises to finally transform their profit expectations into substantial wealth. The purpose of contract is not only to record the agreement reached by both parties, but also to connect the relevant stakeholders, and its essence is to lock the balance point of interests of all parties. The so-called interest balance point is the mutual interest of both parties to the contract for their respective trading purposes. In order to achieve the purpose of this mutually beneficial transaction, then the contract is not just to write down this knowledge. From confirmation to realization, it is necessary to manage the creation, modification and cancellation of contracts. Trading behavior is actually a node for an enterprise to achieve its ultimate business goal. From the establishment, to the entry into force, and then to the completion of performance, the purpose of contract terms design is to ensure that the expected benefits are delivered to the enterprise according to the established track, so as to realize the transaction purpose. At this time, the management of the contract is actually a process of active promotion, rather than passive acceptance of orders. Only by overall planning from the perspective of management and starting from the realization of the purpose of the transaction can we deal with all kinds of situations in the process of signing and performing the contract, preset interlocking preventive and control measures in advance, replace simple and loose relief actions afterwards, and prevent the situation of repeated mistakes and eternal ruin. So, how to realize contract management? In fact, the cornerstone of contract management lies in the design of contract text. Contract management depends on a perfect contract. The so-called management (manage), simply put, is to formulate, implement, check and improve. From the point of view of realizing the purpose of the transaction, the contract is a legal text about the transaction plan. It is the basis for subsequent execution and even prosecution improvement. A contract based on transaction purpose should have four basic functions in content: locking the trading platform, locking the trading content, locking the trading mode and locking the hypothetical disposal. The realization of these four functions must be through the arrangement and combination of specific contract terms. However, under the series of transaction purposes, it is not enough to form a perfect contract with only four basic functions. The arrangement and combination of the four basic functions and terms is only a framework problem, which does not involve specific content. How to inject soul into a contract with a perfect body? This depends on two factors: first, internal quality; The second is the quality of expression. The three elements of legal relationship are nothing more than subject, object and content. Related to it, the subject is required to be qualified, the behavior is legal, and the rights and obligations are clear. In order to meet the purpose of the transaction, it should also be required that the terms of the contract are feasible and can meet the needs of the transaction. On this basis, through textual scrutiny and sensory adjustment, if the structural system is clear, the functional modules are complete, the overall thinking is rigorous, the language expression is accurate, and the layout is beautiful, then a perfect contract will be completed. Lawyer Wu, a partner of Zhejiang Kaimai Law Firm, shows the process of contract design, production, review and modification in the book "Perfect Contract". If it can be done step by step, it seems impeccable. But as the book says: absolutely perfect contract may not exist at all, but relatively perfect contract can be achieved, and perfection is not a result but a process, which depends on the breakthrough of thinking mode and persistent continuous improvement. This statement shows that the identity of an excellent lawyer and a special intellectual is always in a state of awakening of doubt and criticism. Is perfection the goal? Is there a more perfect contract? Why does the law need to be explained? The law is by no means immutable. On the contrary, just as the sky and the sea change with the wind and waves, the law also changes with the situation and fortune. Legal interpreters all hope to find the answers to the problems of their times in the law. As savigny said, it is a scientific work, but it is also an art to explain the beginning and foundation of jurisprudence in legal departments. The design and review of contracts must first conform to the superficial characteristics of the scientific work of legal interpretation. Starting from the purpose of the transaction, four basic functional modules, proper arrangement and combination, and the improvement of internal quality and expression quality, such a contract can completely pass the standardized process design and review, which is in line with the scientific nature of legal interpretation. However, such legal interpretation actually only stays at the level of formal contract management, and has not been fully incorporated into the system of enterprise legal risk management mechanism. Because the purpose of the transaction at this time is actually the basis for drafting and amending the contract without considering the existing legal norms. Compliance here is limited to the contract itself, excluding the purpose of the transaction itself. As mentioned above, the purpose of a transaction, as the node for an enterprise to achieve its business objectives, is actually subject to compliance review if it is included in the whole legal risk management mechanism. If contract management is regarded as a formal part of enterprise legal risk management mechanism, then contract management is completely different from the whole enterprise legal risk management mechanism, and the result is that the compliance review of transaction purpose is divorced from the whole legal risk management mechanism. Real contract management is an organic part of enterprise legal risk management. Under the guidance of the business objectives of the enterprise, according to the needs of human resources management, financial and tax management, corporate governance structure, etc., the purpose of the transaction is reviewed, and on this basis, the contract is designed and reviewed to realize the original intention of contract management. Perhaps because of the limited space, or perhaps because the topic of theme extension is irrelevant, the perfect contract realizes this, but does not delve into it. If contract management is divorced from the whole legal risk management mechanism, then the so-called contract management is still in name only. At this point, contract management just doesn't know the true face of Lushan Mountain, because people are in this mountain, but they can't really realize the proper height of corporate legal risk management. Once you climb to the top of the mountain, you can see that all the other mountains are dwarfed. ..