On Effect Of Contract Violating Mandatory Provisions

Here are totally six chapters in this thesis as below:In first chapter, by using comparative study method and on the basis of comparative investigation to legislation, judicial practice and academic study of effect of contract violating mandatory provisions, the author finds the same logistic position to this issue in most countries, namely the elastic evaluation system of contract effect has been developed by establishing judgment standard of prior virtual analysis and minor formal elements.In second chapter, the author has settled and analyzed evolution of legislation and judicial practice of effect of contract violating mandatory provisions in China. Our legislation and judicial practice would like to try to limit and decrease the extent of contract ineffectiveness by levels of legal norms. Although this initial intention is in good faith, this kind of method also brings plenty of problems in practice at the same time. Therefore, it always faces the different queries from the theory and practice.In third chapter, the author has researched and explored the basis of the issue of effect of contract violating mandatory provisions——mandatory provision from sides of concept, connotation, extension, source of law and assortment etc. Further, the primary method of how to evaluate the mandatory provision has been confirmed. The core of mandatory provision requests that any party’s intention should not exclude it. The reorganization of mandatory provision should not only stay literal interpretation. We need to explore the purpose of mandatory provision by teleological interpretation. The judicial interpretation of mandatory provision in our country’s Contract Law adds the supplementary limitation such as legal or administrative legislation. It is unreasonable from the standpoint of author. The mandatory provisions should not only include laws and administrative legislation, but also contain other normative documents, such as administrative rules and local regulations. The mandatory provisions both in and out of civil law should be considered. Even if the word of "effective mandatory provision" blooms like beauty, operational significance in practice seems to be narrowed.In fourth chapter, the author has learned the function of the clause of effect of contract violating mandatory provisions from the macroscopic and microcosmic view. From the macroscopic standpoint, it holds that private perception of "Private Right First, Public Right Second" should be built under the view of division of public law and private law by deeply analyze the relationship of public law&private law and state coercion&private autonomy. In accordance with above, as the channel connecting public law and private law, the clause of effect of contract violating mandatory provisions shall assume the responsibility to find the balance point between the outside pressure of public law and inherent tension of private law. From the microcosmic standpoint, there are three different theories under this subject, including cause clause, interpretation clause and general clause. The author believes the general clause should be the most reasonable one, because the clause of effect of contract violating mandatory provisions should be the general clause which grant judges the power to measure legal interest in each case.In fifth chapter, the author has intensified the research scope to criterions and paths of contractual effect violating mandatory provisions, which is the emphasis of this thesis. This part has been described from the sides of interest measurement and categorization research. The primary method to evaluate the contractual articles is to analyze the norm purpose and protective interest of specific mandatory provisions and contract interest as representative of contract freedom under the orientation of proportionality principles. In the mean time, it decides the important function when judges apply the articles. The interests consideration methods should certainly be principal factor to guarantee the legitimacy of each case, but it also should not be neglected the formal consideration of categorization which could limit the possibility of enlarging the discretion power of judges and ensure that the similar cases should obtain the similar decision. In a word, the author has selected some common types of mandatory in legal practice on the basis of boundary of mandatory regulations to make some analysis, in order to contribute some reference for reduce difficulties of abstract judgment. In sixth chapter, the author has made further instruction to the definite effect of contract violating mandatory provisions on the basis of foregoing research. On the article52, item5of our country’s Contract Law, it uses the method of teleological limitation interpretation and finds out the conclusion of the results without the limitation of ineffectiveness. However, this interpretation seems to be obscure and its guiding meaning to our judicial practice should be tough to stretch. Therefore, it suggests that the purpose reserved legislation shall be adopted to explain the article52, item5of our country’a Contract Law in the near future. Thus, it could provide explicit normative foundation to diversified effectiveness evaluation system for the contract against mandatory provisions from valid, revocable and uncertain effect to void effect.