Research On Characteristics And Identification Of Administrative Norm

Administrative norms as a division of mandatory norms,the most essential difference between it and validity norms is that the violation of it does not necessarily cause the contract to be invalid,based on this,the administrative norms make the validity of the contract more likely.However,because the legislation does not clearly define the criteria for the distinction between administrative norms and validity norms,the judges can not accurately identify the two in the judicial practice,resulting in the confusion in the judgment work of contract validity.After revealing this problem through two cases in the introduction,a study is carried out around the administrative norms,and the article is mainly developed through five parts:The first part is a comparative study of administrative norms.Although this concept of comparative norms was put forward for the first time in the legal regulation system of China's mainland,it is not unexpected,but rather a result of rational thinking on the basis of learning from the theoretical results of other countries and regions.Through the comparative study of relevant theories in Germany,Japan and Taiwan,the concept of management norms is more fully understood.The second part is the jurisprudential basis of administrative norms.An analysis of administrative norms through various legal theories seeks a solid theoretical foundation for the proposed administrative norms and lays the premise for its reasonable existence.Through an analysis by the theory of legal interest measurement,the administrative norm is a more rational choice between public interests like national order and private benefits of freedom of contract;Analyzing by Law and Economics theory,it can be concluded that the externality theory provides economic support for administrative norms,while the distinction between administrative norms and validity norms can be achieved through cost-benefit analysis;Analyzing by the theory of private law is absorbing some elements in public law,the purpose of the administrative norms is to achieve the maintenance of the fundamental value pursuit of private law characterized with autonomy of will at the tendency of private law becoming public.The third part is the typological analysis of administrative norms.Combined with the administrative norms provisions widely involved in judicial practice,the typological analysis is carried out from different perspectives.According to the different management subjects,it is divided into executive administrative norms with the government as the management subject,industry administrative norms with the industry as the management subject,and organization administrative norms with the organization as the management subject;According to the different management objects,it is divided into the administrative norms concerning the subject,the administrative norms concerning the behavior,and the administrative norms concerning legal consequence;According to the different management purposes,it is divided into administrative norms that achieve the goal of macro-control,achieve system management and maintain security order.The fourth part is the characteristics of administrative norms.The characteristics of the administrative norms are summarized as the externality of private law behavior,the necessity of national intervention,the limitation of autonomy of will,the independence of contract effectiveness,the urgency in standardized management.The fifth part is the identification path of administrative norms.Referring to the current more mature views on the identification of mandatory norms and combining the thinking in the guidance of work for the judgment of validity of contract,the paper analyzes the identification path of administrative norms from the following four steps: first,confirming the necessity of administrative norms identification;second,examining the externalities of illegal behavior;again,determining whether the administrative norms are enough to adjust externalities;finally,verifying the correctness of the administrative norms identification.