Research On The Effectiveness Of Mandatory

An important basis for the "Contract Law" Article 52 is to determine the contract null and void, but for which paragraph 5 of understanding and application has been controversial.Although the "contract law interpretation(a)," on the "Contract Law" Article 52, paragraph 5of the contract null and void based on judgments made further restrictions, "explained Contract Law(II)" is more the result in violation of the mandatory provisions of the contract void in accordance with clearly defined as mandatory effect, but limited by the lack of legislative technique and other objective reasons which did not provide a clear distinction to judge the effectiveness of mandatory and management of mandatory standards, coupled with the referee who exist on the subjective value judgments a huge difference, leading to the practice of operating in a "Contract Law" Article 52, paragraph 5 is based on judgment of nullity of the contract or similar cases co-existence of different phenomena sentence, "illegal" that is "invalid" common equivalent propositions all verdict. Academics and practitioners both from a utilitarian point of view, or pure academic research to the correct understanding and application of the Act for the purposes of article from a different perspective on the effectiveness of the mandatory provisions made a useful discussion of the issues resolved,maintenance trade order and promoting the development of freedom of contract is of great value.In this paper, the effectiveness of mandatory expanded to center study to existing research results as the basis for the effectiveness of the mandatory provisions identified as refuge, hope to study the effectiveness of mandatory play a catalytic role. Including the introduction and conclusion, the thesis is divided into six parts.The first part is an introduction, containing proposed terms of the purpose and topic of this study, a review study, theoretical significance and practical value, research methods, research and innovation, etc., to expand the main part of the article acts as referral.The second part of this article topic as part of the lead author adhering to the problem ofconsciousness, a keen insight into the presence of this topic in the legislative and judicial practice is controversial. Structural arrangement, the first sort out the effectiveness of the mandatory provisions of the legislation pulse source to historic and vision to capture the times have ambiguity and the rigidity of the need for legislation to place the judicial practice for inspection, naturally study understanding and application of the effectiveness of the mandatory provisions, there are many problems in judicial practice and analyze its causes.The third part, the second part as the issues raised in accordance with this section will start pen to clarify the effectiveness of the mandatory provisions of the intension and extension,and introduces and analyzes the mainland and Taiwan scholars on the effectiveness of the mandatory provisions of the understanding and application of relevant discussion, thus completing the mandatory provisions of the effect of general description.The fourth part of this section from the perspective of comparative law studies to expand the system of mandatory effect, comparative analysis of the two legal systems differ invalidate the contract on the basis of legislation and comment on the doctrine, combined with taking into account the effect of foreign non-mandatory the provisions of this concept, we will explain the "German Civil Code" Article 134, "the Japanese Civil Code" Article 90, as well as common law system with "Second Restatement of Contract Law" Article 178 concerning the representative identified The core provisions of the contract null and void and the doctrine of view, hoping the legislative and doctrine through all-round, multi-angle, three-dimensional study finds that foreign-related legal action or behavior contract provision invalid in its expanded research and systematic reviews based on the abstraction of recognition of the effectiveness of the mandatory provisions are worth learning place.The fifth part, as a core part of the case study, adhering to solve the problem of consciousness, two-part system elaboration on the effectiveness of the mandatory provisions of the domestic and foreign legislation and the doctrine of view after the first author to be proposed on the effectiveness of mandatory identified personal reflection. First, we should establish private autonomy, encourage basic principles transactions, changing the traditional "illegal" from the concept = "invalid" erroneous views. Secondly, the effectiveness of mandatory specifications for the purpose of investigation, adhere to the unity of subjective and objective purpose purpose of study visits, comprehensive grasp of legislative intent,clearly different from the effectiveness of the initial management and administrative provisions mandatory provisions is to protect the interests of the type and We look forward to the establishment of the state of social order two aspects. Again, learn heck benefit analysis to identify the effectiveness of mandatory and comprehensive use of the interests of rank inspection, using the principle of proportionality, the consequences of the three methods to evaluate the effectiveness of the mandatory provisions contained interest to diversify study aims to the effectiveness of the conduct mandatory system of certification. Finally, the "Contract Law" Article 52, paragraph 5 below summarizes the provisions only play a role similar to the pipeline in the process of identifying the effectiveness of the mandatory provisions, many scholars try to use the type of analysis, identification method, the method for clearly define the effectiveness of mandatory provisions, played a multiplier effect.Therefore, this part of the presentation and assessment on the basis of the existing types of academic recognition, the author proposes to constitute elements of civil legal relations as the main classification criteria, complemented by the formal requirements of the contract and procedural requirements for the entry into force matters to a secondary consideration, The effectiveness of the mandatory provisions into the main eligibility on the effectiveness of the mandatory provisions, on the effectiveness of mandatory subject of the transaction, the mandatory provisions concerning the validity of the contract, the mandatory provisions concerning the procedural validity of four, and the mandatory provisions of the contract made in the form of management of special instructions, under the guidance of this kind of approach, we will make every type more detailed explanation, thereby providing a visual effect of the mandatory requirements for the recognition of The identification of the law.The sixth part of the article conclusion. The author of this case study illustrate the efforts and this study will only be seen as a beginning study the effectiveness of the mandatoryprovisions, a stage, rather than the end. Expect more teachers and scholars have published their own insights, early to provide a superior solution for the problem of the law.