On The Effectiveness Of The Contract In Violation Of The Mandatory Provisions

This paper starts by describing mandatory law in the field of contract law,the development of contract legislation,then summarizes trends in the mandatory provisions.Next,the paper attempts to define the connotation and extension of mandatory provisions.In this conceptual framework,the paper discusses problems in legislative system and judicial practice,then compare and summarizes the research in and out of China on this issue,and mentioned what our legislation,judicial practice can learn.This paper contains five parts.The first part is the introduction.The second part is about basic legal,legislative,the judicial system on the status of the validity of the contract in violation of mandatory provisions.The third part discusses legislative,judicial questions on the validity of contracts in violation of mandatory provisions.The forth part makes comparative analysis on the effectiveness of the contract for the processing mode in violations of mandatory legal provisions.The last part purposes how to improve the contract effectiveness in breach of contract of mandatory legal provisions.Part Ⅰ,Introduction.This section describes the research methods,research background,research status,the content and innovation of the paper.The second part is about the basic legal,legislative,the judicial system on the status of the validity of the contract in violation of mandatory provisions.This section is divided into two parts.First,the basic legal principle concerning violations of the mandatory legal provisions of the contract validity issues.In this section the paper introduces the history in China Contract Law,and analyze the connotation and extension of the mandatory provisions.Second is the introduction of legislation,the judicial system in violation of the status quo on the effectiveness of mandatory contract law issues.This section describes the development of the legislative and judicial systems in regard to the mandatory law.The third part discusses legislative,judicial questions on the validity of contracts in violation of mandatory provisions.It consists two parts.The first part discusses problems in China’s current legal system,including undefined judging system and standards,legally undefined public interest(public order and good morals),the function and definition of the clause "contrary to the public interest shall be void" is not clear,and the legal hierarchy as a containment is limited.Secondly,through case analysis,the paper points out problems in our judicial practice,which is a lack of basic reasoning and judgment to weigh the legal interest,and differences in verdicts,etc.The forth part makes comparative analysis on the effectiveness of the contract for the processing mode in violations of mandatory legal provisions.Through comparative analysis,the paper studies and summarizes legislation in Germany,Japan,Chinese Taiwan province,USA and Britain,and propose to introduce success experience into China’s mainland.The last part purposes how to improve the contract effectiveness in breach of contract of mandatory legal provisions.This section first proposed the legislation change of validity of the contract in violation of the mandatory provisions,which is to re-integrate Article 52 of the Contract Law,re-acknowledge the breach of public interest from the legislative perspective,and suggest to remove the restriction of "set forth by laws and administrative regulations” before clauses.Then the paper proposes change in violation of the mandatory provisions of the judicial validity of the contract,which is to put forward a four-step method in determining the validity of the contract,and thus to re-evaluate cases discussed in the third part.