A Study On The Application Of "Mandatory Provisions" In China 's Contract Law

For a long time，the content of the Contract law Article52Item5is the point at issue.There is great value to understand and apply correctly of the Act to maintain the civil lawautonomous principle and understood correctly of the validity of the contract between theparties. In current judicial practice and theory, for the legislation has not given the specificdiscrimination standard between the effect compulsory rules and management compulsoryrules and the knowledge reserve and subjective understanding of judge have a hugedifference，so the unreasonable judgment which involved Article52Item5are still massiveexist despite the explanation I of contract law has been clear about the specific area ofcompulsory rules and the explanation II of contract law also be strictly defined thecompulsory rules as effect compulsory rules.This paper mainly adopts the case analysis method, the law explanation study method aswell as the method of theory with practice，focus on clarifying the connotation of compulsoryrules and aim to benefit the Article52Item5understanding and applying in judicial practiceand maintains the ordered operation of market economy.Besides introduction and conclusion,this paper consists of four parts：Part I：Introduction of case. Introduce the background of transfer of the right to the use ofthe land and the house relocation compensation of contract dispute case between a privatelyoperated real estate company and a State-owned construction company.Part II: The divergent opinion and dispute focal point of the case. There is a lot ofdivergence of the specific understanding and applicable because of the specific area ofcompulsory rules and specific discrimination standard between the effect compulsory rulesand management compulsory rules have not been clear. The dispute difference of this case ismainly on whether the involved contract is invalid for violating of compulsory rules. On theidentified for the validity of the contract，the Controversy mainly focused on the area ofcompulsory rules and discrimination standard between the effect compulsory rules andmanagement compulsory rules to determining the validity of contracts.Part III: Theoretical analysis. This part is the key part of the paper. Through thetheoretical analysis of disputes focus on the case.This paper aims to definite the area of compulsory rules and discrimination standard between the effect compulsory rules andmanagement compulsory rules to determining the validity of contracts thereby to protectionthe Article52Item5can be applied correctly.Part IV：Conclusion of the study，which is the conclusion part of the paper. First of all,give an overall analysis of the case base on the above theoretical analysis and get some properspecific treatment advice. Second, for existing problems in the theory and the judicial practiceimproves the suggestion correspondingly and aim to provide the beneficial help on reasonableidentified the validity of the contract.