The Mandatory Norms In Civil Law

The"convergence"of the public law and the private law is a large,complex systematic project. The core technology of this project is the norm design and allocation. The mandatory norms play a role as"backbone", and the reasonableness of mandatory norm allocation embodies the technical content of the norm design and allocation. In this sense, one can say that the norm design and allocation, and the"convergence"of the public law and the private law, to a large extent, are the two sides of a coin. Based on this understanding, to find the possible approaches to the"convergence"of the public law and the private law, by deep analysis of the mandatory norms, becomes the main task of this thesis. In addition to introduction and conclusion, this thesis is divided into four chapters:In the first chapter, I hope, by the study on the concept and the types of the civil law, to find the basis of the norm allocation of the"converging"the public law and the private law. This chapter points out that the reasonable partition of civil law norms and the norm allocation in civil law are not only the prerequisite and basis of the"convergence"the public law and the private law, but also the important component of the"convergence"technology. Therefore, in order to complete the"convergence"of the public law and the private law, the civil law must properly manage its internal affairs. On one side, we should update norm philosophy, on the other hand, under the guidance of new ideas, we should re-located the nature and function and properly design and adjust the norms inside civil law, discard the duality of the ideological norms and the"dichotomy"method. On norm allocation, we should properly absorb the mandatory norms with the control function and the legal norms which vests authority in one party, legal norms which vests authority in singular third party and semi-mandatory norms with autonomy and control as dual function on the basis of looking optional norms as the main part. The five norms have different degrees of autonomy and control functions. If be allocated cleverly, they could settle a good foundation for the"convergence"of the public law and the private law.The second chapter aims to prove the necessity of the"convergence"of the public law and the private law by justifying the Establishment of Mandatory Norms. This chapter shows that the necessity of the"convergence"of the public law and the private law is decided by a variety of factors. The norm allocation of the mandatory norms and the"convergence"of the public law and the private law are both the product of many factors, which evolutes as time goes by, such as economic development, political system, legal thinking, the public sense and so on. We have to find, from different points, the reasonable base, value position and the potential impact to the whole social order behind the mandatory norms. Only on this basis can the justification and the necessity of the"convergence"of the public law and the private law be proved.In the third chapter, I want to point out the legislation tasks of the"convergence"of the public law and the private law through analyzing the forms for the mandatory norms to enter the civil law field. This chapter holds the view that in the large project of the"convergence"of the public law and the private law, legislation plays the most important role. To accomplish the task of the"convergence"of the public law and the private law by legislation, legislator should properly deal with the relationship between the constitution and the civil law, the administrative law and civil law, general civil law and special civil law, the civil substantive law and the civil procedure law as well as the relationship between different norms in the Civil Code. In the whole legal system, we should reasonably divide the law into different sectors to achieve a harmonious interaction between public law and private law in the"convergence"of them. Among them, the constitution and the norms which are purely administrative law are the prerequisite mandatory norms. These norms are not appropriate to be included in the Civil Code, so they should be retained in the constitution or in the administrative law. To achieve specific public policy objectives, the mandatory norms outside the civil law should be special arrangements in the civil and administrative law regulation, and they are also not suitable to be included in the Civil Code. The mandatory norms which set minimum requirements for autonomy civil law, as well as the mandatory norms which lay the pipeline leading to the public law should be included in the Civil Code. Only in this way can the pubic law and the private law complete the"convergence"task in the legislation level.In the fourth chapter, I want to explore judicial channels in the"convergence"of the public law and the private law through analyzing the type, interpretation and application of the mandatory norms. This chapter points out that no matter how the legislator works in the"convergence"of the public law and the private law, the court plays a very important role. It should have the last voice. The court must have the ability to properly identify different the mandatory norms in the civil law, and gives the reasonable interpretation according to different mandatory norms, and lays foundation for the application. Regardless of the history interpretation, the systematic interpretation, the purpose interpretation and constitutionality of the interpretation to the mandatory norms, or complement to the leaks of the mandatory norms, in essence, are the complement to the crack in the"convergence"of the public law and the private law. Without the arduous and painstaking work of the court, the"convergence"of the public law and the private law can not be accomplished completely.