On Effectiveness Of Contract Violating Mandatory Provisions

The article is divided into seven chapters.The first chapter puts forward the article's topic which is to cognize effectiveness of contract violating mandatory provisions, defines the connotation of mandatory provisions, and states the article's study value and methods.The second chapter is comparative study. By sorting out and commenting most countries'legislation, judicial practice, and academic study about cognizance of effectiveness of contract violating mandatory provisions, the author finds that there are some elements common in most countries. One is the establishment of elastic evaluating system to cognize the effectiveness of contract violating mandatory provisions, the other is that similar cases should get similar decision.The third chapter states our country's legislation, judicial practice, and academic study of cognizance of effectiveness of contract violating mandatory provisions. Through analyzing legislation and judicial practice, the author advocates that cognizing effectiveness of contract based on provisions'belonging level in legal system is not desirable, which conflicts with the theory of legal source in science of legislation and jurisprudence, and leads to dogmatism when applying article 52. item 5. of our country's Contract Law because of simplified legal reasoning procedure.The forth chapter is based on the division of public law and private law, because the essence of cognizance of effectiveness of contract violating mandatory provisions is to define privately autonomy and state interference. Two basic principles of private law are to safeguard rights and to limit power, furthermore, we could make a deduction of two relative principles, that is , to give priority to rights and power at second rank, and to ensure that state should not intervene individual freedom unless through legal procedure. The two deductive principles should be persisted in especially under the principle of rule of law. By analyzing the relationship mode between public law and private law at the period of social change in our country. The absence of private law tradition and environment for civil society results in the lack of idea of private rights from the outset. Private autonomy should be fully respected and guaranteed to meet the requirements of the development of marketing economy. Current situation is that there are lots of mandatory provisions in civil legislation, and there is little restrictions and regulations on state interference. It is feasible to establish the responding mode of law.The fifth chapter puts emphasis on legal application of the of effectiveness contract violating the mandatory provisions. As far as the function of institutions is concerned, the clause of effectiveness of contract violating the mandatory provisions is the bridge and link to connect the public law and private law. Technically, it should be regarded as the general clause of delegating authority to judges. If the specific mandatory provision makes the effectiveness of contract violating it clear, there is no need to apply the clause of effectiveness of contract violating mandatory provisions. The cognizance of the effectiveness of contract violating mandatory provisions actually includes a three—tier question: The first is the cognizance of mandatory provisions. The second is the impact on the validity of contract when it is against mandatory provisions. The third is the private law effect on contract violating mandatory provisions. About the first tier question, mandatory provisions mean the state intervention which is the normative format adopted by the State to implement and fulfill its specific policy and purpose. To judge whether a legal norm is mandatory, it is a question to figure out the legislative purpose and intention of this norm which only can be reached through the normative analysis and legal interpretations. The essence of second question rests with the confirmation of the relationship between mandatory provisions and the effectiveness of contract. Under the above dual viewpoints of public and private law, the exercise of state power must be justified and the judge should put forward the reasons to invalidate a contract because of the break of mandatory provisions. It means, the interest to be realized by mandatory provisions is prior to the freedom of contract to be protected. The intervention by the mandatory provisions should follow the principle of proportionality. To further confirm what kind of impact of specific mandatory provisions can be on the validity of contract, it should by judged ad hoc, considering both the protection of public interest and the balance of parties'interests. The reasoning process of judges finally should be reflected on the opinions of decisions. Thus, the focus of this study is on how to ensure the fairness of individual case. That is, how to ensure similar cases can be decided similarly? It is this article's view to fulfill this by categorization through which the discretion of judges could be restricted in the specific application.The sixth chapter states mainly private law's effectiveness of contract violating mandatory provisions. The author holds the opinion that the private law's effectiveness includes validity(but clients will bear other legal liabilities), nullity, and nullified buffer system in the middle of them ,which will be studied principally in this chapter.The seventh chapter is conclusion.