The Research About Mandatory Provisions And The Validity Of A Contract

The validity of a contract is an evaluation of parties’consensual behavior according to the law. It reflects the will of the state. The cases of invalid contract are enumerative illustrated in article52of the contract law. The judicial interpretation II of contract law defines mandatory provision to validity mandatory provision. Our national legislation and judicial interpretation narrow the legal scope of invalid contract reflects judicial practice and the theoretical academic pay more attention to the transaction security. However contract law and the judicial interpretation are both do not clearly defined what validity mandatory provision is, which causes case verdict quite different in practice. It also creates new problems in the fields of enforcement and judicial practice. Therefore it is necessary to make more legal consideration to validity mandatory provision. It is very important to clarify the legal problems about mandatory provision and validity mandatory. It is necessary to figure out the difference between validity mandatory provision and manageability mandatory provision, and look for the equilibrium point between public interest and personal interest.This article has four parts with the lead and the epilogue.The first part of this article which analysis the connotation and epitaxial of mandatory lay the foundation for the depth study below. Author elaborates the mandatory provision in three parts which includes object, content of mandatory and consequences. Then in the view of the influence that mandatory provision bring to validity of a contract, this article distinguish the sequence of mandatory provision in public law and civil, validity mandatory and manageability mandatory provision.The second part clarifies the principle of distinction violation of the mandatory, and the principle about freedom of contract, according to the comparative analysis about doctrines of other countries and Taiwan region of China. In accordance with the analysis domestic mainstream view and cases in out legislative history and judicial practice, the third part elaborates the legislation guiding ideology in our state have been changed, it tends to protect the validity of the contract with more attention paid to transaction security by judicial practice and theoretical academic. But the standard that identified a contract invalid is still absence in our legislation and judicial practice in this field is still confusion.In the fourth part, this article puts forward a standard for identifying a contract invalid according to the judicial experience. In this part, this article uses the principle of proportionality to distinguish the validity mandatory provision and manageability mandatory provision. At the end of this article, author analysis a specific case with the way of dividing and observing which makes the proposal principle much more clear.