The Research Of Legal Acts Partial Invalidation Rules

Article 60 of General Principles of the Civil Law,Article 56 of the Contract Law,and Article 156 of the General Provisions of the Civil Law make provisions for the rule of partial invalidation of legal acts.However,the provisions are too simple and difficult to apply if not refine.Investigating judicial practice,there are a large number of judicial trial cases and we can refer it.The article focus on the application of partial invalidation rules of legal acts.The first chapter is about the selection of pattern of partial invalidation rules.Sorting out the legal acts invalidation pattern of Germany,Japan,Switzerland,UK,USA and Taiwan.In the positive law,invalidation as a whole is the principle and partial invalidation is the exception,which is same as "the integration of legal acts" of traditional civil laws such as Germany and Switzerland,and there is no much difference in application.In Chinese civil legislation,there is a system of partial invalidation of legal acts,which is also applied in judicial trail.However,the system's provisions are relatively simple,only stipulate the basic framework and needs to be explained before it can be applied,so when we understand and apply this system,we should analyze the "not affect" and "part" in partial invalidation rules of legal acts.The second chapter analyzes " not affect." The first section solve a question: the party's behavior involve several clauses or subjects,is it identified as a legal act or a number of legal acts? What are the meanings of identification? On the basis of this question,The premise of " not affect" is that-the integral legal acts,the separability of the legal acts,and the partially invalid: the single legal act requires the unity of the meaning,in its form,the establishment of integrity,subjective integration,and economic integrity;In the case of multiple persons,quantity separation,quality separation,and time separation,the legal act can be considered as separable;a single legal act is partially invalid,and the reason for its invalidity is not important,and a broad explanation should be given for “invalidity”.In section two,regarding the judgment of “not affect”,there are standards of “speculating the meaning of the parties” and “value trade-offs” in the doctrine,and should be interpreted in practice.When constructing a “not affect” judgment model,first of all,it is necessary to respect the autonomy of the parties,and make judgments through interpretation.For the explanation,it should be done from the four aspects of the object,time,standards,and method of interpretation.The explanation method is complementary explanations and subjective purposes explanation.The result of “not affect” is partial invalidation.After the invalid part is removed,the remaining parts continue to have effect between the parties.The third section relates to the issue: how to interpret the fact under the current system,which abandoning directly the invalid part of the judicial decision and making other parts effective in judicial referee.Partial invalidation relates to a problem,changes of legal acts,as a common is change of contract.The German doctrine hold that can not change the contract when applying the partial invalidation of legal acts.From the judicial practice in China,we should examine the relationship between the rules and the contract changes.The third chapter is about the restrictions of the application.As a supplementary rule,the application of partial invalidation rules of legal acts is restricted,which is subject to the agreement of the parties,the purpose of legal acts.When the invalid part involves the compulsory regulation,it is necessary to consider some invalid provisions of the legal act,and also to test according to the purpose of the law violated.In the field of testaments,there is a difference in the application of some of the invalid rules of legal acts,because of the particular nature of the will.In addition,the partial invalidation of legal acts are subject to special provisions.