The Definition On The Legal Interpretation Of Effective Mandatory Norm

The principle of freedom of contract is the most concentrated and importantmanifestation of the spirit of autonomy in private law, it is the basic protection forthe general public of the community in order to live their lives (civil life) againstintervention of external power, it is also the basic condition of fully mobilizing theindividual creative potential to promote the development of economy and society.However, the absolute freedom can only bring citizen confusion and anarchism, theprinciple of freedom of contract is also like that, especially the freedom in the scopeof law must be restricted by law, should not violate the law. Does it mean that if thecontract and the effective mandatory norm in the contradiction, the contract will bedeclared invalid? The effective mandatory norm just be explained literally in China’slegal theory, its definition also lack deep and systematic study, the foreign legaltheory is also same. The definition of the effective mandatory norm has a greatsignificance to the civil disputes in the court involved the validity of the contract. Itis not only conducive to the protection of the legitimate rights and interests of theparties, but also conducive to the stability of China’s judicial order. Therefore, it isvery important to deeply and systematically study the definition of effectivemandatory norm.This article includes five chapters:The first chapter is the historical research of the effective mandatory norm,mainly discusses the problem, the research of scholars at home and abroad and thedefects between the effective mandatory norm and administrant mandatory norm.The second chapter is the definition of the effective mandatory norm throughliteral interpretation. The specific expiation should be firstly defined through literalinterpretation. The first is the case can be completely ruled out, such as the normcontaining of “may”, the second is the case which can be initially determined themandatory norm, but can not fully determined the effective mandatory norm, we have the need to analyze it in specific context, such as the norm containing of “no”and “prohibited”. Finally, it is the case can be analyzed according to the specificcontext, such as the norm containing of “should”.The third chapter is the rank restriction analysis of the effective mandatorynorm. As a typical representative of the effective mandatory norm, the article52in“Contract Law” claims the violation of laws and administrative regulations of thecontract shall be declared invalid, it limits the scope of the effective mandatory norm,it only limits the effective mandatory norm into the level of administrativeregulations, shall not be extended to the level on effectiveness less thanadministrative regulations, local regulations, administrative rules and othernormative documents. However, the scope of “the effective mandatory norm” refersto the peremptory norms not in the civil law or including peremptory norms of civillaw? If the behaviors violated the effectiveness of less than “law” and“administrative regulations” is necessarily invalid? Therefore, we I firstly analyzethe rank limiting object, and have a restriction analysis about the rank limiting objectthrough using the example of the article52in “Contract Law”, even though it has acertain theoretical significance, but still be flawed.The fourth chapter is the definition of the effective mandatory norm from theperspective of measuring interests. Because the definition of the effective mandatorynorm from the perspective of rank still has some defects, so when we define aproblem like whether a norm belong to peremptory norm and the level of peremptorynorm, we need to compare the interests behind the specification in order todetermine whether the contract freedom which based on the value of the contract ismore worthy of protection, or the interests behind the peremptory norms is moreworthy of protecting. First of all, we analyze to the method of measuring interests,and understand the interests which protected. Finally, we explain the effectivemandatory norm from the perspective of measuring interests.The fifth chapter explains the effective mandatory norm through teleologicalinterpretation. Firstly, we introduce the definition and meaning of teleological interpretation, and then the comparison between the teleological interpretation andjudge-made law. Then, we explain the article52in “Contract Law” throughteleological interpretation, and finally we define the effective mandatory normthrough some examples.