Research On Mandatory Norm In Civil Law

From the level of judicial, legislative and theoretical research, our mandatory norms of civil law have many issues. Ultimately, it would be attributing to some basic problems such as concept definition, type classification, efficacy determination, and arrangement of norms, judicial recognition and applicable explanation. Aiming at these issues, this thesis mainly elucidates from the point of basic theory, legislation and application. Except the introduction, there have six chapters. The first four chapters mainly researches basic theory, chapter five is the research on legislation, and chapter six is on judicial application.Chapter one discusses the concept of mandatory norms of civil law. Firstly from two aspects of concept’s term and essence, the concept’s dispute focus is summarized. In the aspect of term, analyze and compare the text of “mandatory”, norm and rule, regulation, laws and regulation, and determine the reasonability of mandatory norm as the concept’s title. In the aspect of essence, mainly study the mandatory object, contents and efficacy. The mandatory object refers to the civil subject or the parties, instead of judicial organ. The mandatory contents are that the parties cannot obviate or change the judicial application of legal norm. And then, the mandatory efficacy not only refers to the legal sanction, also includes that the legal effects that the parties intend to generate encounter legal impediment. Therefore, mandatory norm of civil law can be defined as: it’s a legal norm that the parties cannot obviate or change its judicial application, otherwise, the intended legal effects will encounter legal impediment. Finally, after comparing with autonomy norm, advocated norm, semi-mandatory norm and prohibitive norm, it makes the mandatory norm’s denotation more clear.Chapter two demonstrates the legal basis of mandatory norms in civil law. The civil law regards autonomy as the highest aim. Mandatory norm seems belong to heterogeneous norm because it limits the autonomy and rights or freedom of the parties. Therefore, the existence of mandatory norm must have strong reasons. There have three main reasons. The first one, from the viewpoint of historical origin, during the process of civil law’s evolution the source of civil law gradually transformed from the open way to domination by the national formulation law. Under the background of state-leading legislation, considering the social public interests, it is necessary to transfuse certain mandatory norms into the private law. Mandatory norms in civil law had already existed in ancient Rome times. Up to now the quantities increase sharply and applicable scope is expanding rapidly. Mandatory norm becomes an independent existence with corresponding social base. Furthermore, it became more reinforcement when distinguishing civil code and special civil law in the formulism system. The second, mandatory norms of civil law really have the outstanding function. It can fuse the relationship between the individual and society, keep the balance between the autonomy in private law and national force, consider the formal rationality and essential rationality, and coordinate private interests and public interests. This is the function base of the existence of mandatory norms in civil law. The third, mandatory norms of civil law can maintain formulism equality, promote substantive equality; to ensure the personal and property safety, protect the safety of market transaction, marriage and family; to ensure personal life’s order, realize social stability; enhance social operating efficiency. This is the legal value’s basis of the existence of mandatory norms in civil law.Chapter three sets forth the type of mandatory norms of civil law. One of the important purposes to research on mandatory norm of civil law is to determine its efficacy and facilitate judicial application. To this purpose, the classification of mandatory norm of civil law must be defined. According to different norms, it could be divided into different types. Some division of traditional types will meet some problems such as unreasonable norm and the unclear or incomplete demarcation. In order to achieve the purpose that the type is practical and comprehensive, the thesis, according to the standard of mandatory nature, mandatory degree, the normal basis, form and contents, reconstructs types of mandatory norms in civil law, such as model of the private law and public law, full mandatory norms and semi-mandatory norms, self-sufficiency and shifting model, principle and rule model, procedure and substance model, etc; and illustrates the significance of each type. In addition, substantive type of mandatory norm in civil law can be subdivided into type of right and behavior according to the mandatory behavior factors. According to the contents of legal relation, it would be divided into the mandatory norms of rights, obligations, and liability.Chapter four makes an analysis of the efficacy of mandatory norms in civil law. According to its contents, the efficacy of mandatory norm can be divided into three kinds: invalidation of acts, civil liability and liability in public law. The causes leading to invalidation of acts lie in the protection of public order and social public benefit, or the third party’s benefit controls behavior’s efficacy. The types that lead invalidation of acts include the norms such as the two-party, procedure, behavior mandatory norm and efficacy mandatory norm. While whether semi-mandatory norm, privilege mandatory norm and management mandatory norm can result in invalidation of acts is uncertain. The cause leads to civil liability lies in breach of obligation, including breach of contract obligation and victimless obligation. Therefore, mandatory norm of obligation and liability may lead to civil liability. While mandatory norm of right, full mandatory norm and one-side mandatory norm do not necessarily lead to civil liability. The cause leads to public law’s liability lies in breach of public law’s obligation. The norm bringing out such liability is civil mandatory norm with the character of public law. As for shifting mandatory norm, it may cause the public law’s liability only when it shifts public law.Chapter five analyzes the legislative configuration in mandatory norms of civil law. In the era of legal globalization, scientific legislative configuration needs to refer to the experience of extraterritorial legislation. Continental legal system has a close relationship with our country. Exploring the development discipline of legislative configuration in mandatory norms of civil law and using the excellent legislative precedents as reference is good to compile our civil code, determine the norm’s element, improve the legislative mode, and strengthen the system function. In our current mandatory norms of civil law, there have many problems that the mandatory norms are too much, have high degree of enforcement, over-limit right or freedom and the modal words are in improper use. The reasons of above problem are the weakness of civil society where civil law exists, the prejudiced legislation concept and backward legislation technology. After the privilege of the individual to society, market to government and private law to public law is fully realized, the guiding ideology of legislation configuration renewed the legislation mode, legislation basis, legislation statue and method in mandatory norms of civil law can be determined. Thus, scientific configuration of mandatory norm of civil law, to ensure its reasonability and operability, can make the codification of civil law scientific, perceptive and applicable.Chapter six discusses the judicial application of mandatory norms in civil law. The premise of norm application is norm identification. When mandatory norms of civil law are used in judicial practice, the external and formal identification can be made through mandatory modal words; content recognition through finding the normal meaning and explaining the norms; essence identification through the value judgment and balance of benefits. During the judicial practice, once legal contradict, hysteretic or without rules in writing, the application of principle should posses the necessity, possibility and legitimacy. Then, it should determine the category relationship and norm significance for principle. When there is no legal proclaiming in writing, supplement or analogy suitability will be done according to principle. When legal contradict, law will be created according to principle. When law stays behind, judicial creation is necessary based on spirit of principle. The application interpretation of rule of mandatory norms in civil law objects the clause or texts that constitute legal norms. Interpretation methods include semantic interpretation, teleological interpretation, historical interpretation, and systematic interpretation; and they can prompt judicial application of rule of mandatory norms in civil law in the aspects of literal meaning, the purpose of norm, the legislative spirit and logistic system.