The Impact Of Departmental Regulations On The Effectiveness Of Contracts

Article 52 of the Contract Law and Article 153 of the General Principles of the Civil Law stipulate that the people’s court may deny its validity based on the contract in violation of the "mandatory provisions of laws and administrative regulations",and administrative regulations with lower legal effects have not been included Within the scope of the above-mentioned basis,this has blocked the direct passage of the negative effect of the contract by the administrative regulations at the legislative level.The legislators’ intentions are very clear.In practice,because administrative regulations are often numerous and different in name,if they are allowed to directly interfere with the validity of the contract,the consequence will most likely be that excessive public power’s involvement in the field of private law violates the autonomy of the parties to the transaction,leading to transaction risks.Expand and erode the foundations of the market economy.On the other hand,if certain administrative regulations cannot affect the validity of the contract,this will greatly limit the role of the regulations and cause them to fall into the predicament of "regulation but not regulation." And how to resolve the conflict between the legal provisions and the actual needs will be the core issue of this article.It is worth noting that Article 31 of the Minutes of the Nine Minutes published by the Supreme Law in 2019 mentions that contracts that violate public order and good customs regulations related to financial security,market order,and national macro-control policies should be negated.This aspect is in response to the theoretical disputes caused by several adjudication cases in practice in recent years,and shows the clear attitude of the Supreme Law on this position.Second,it also provides the judicial adjudication ideas of administrative rules affecting the effectiveness of the contract,that is,in The realization path is mainly the judgment of the people’s court on whether the contract "violates public order and good customs." However,the author believes that Article 31 of the Nine Minutes is obviously not enough to deal with practical problems.First,public order and good custom itself is a vague and uncertain concept,and it is obviously not easy to judge whether it violates public order and good custom.Second,the content of Article 31 Not detailed enough,the rules affecting the effectiveness of the contract must have the characteristics of maintaining financial security,market order and conforming to national macro-control policies,but this is only a feature of such rules,not the only one;in the end,it fails to respond to specific cases The principles of rationality that judges must pay attention to when judging whether a contract violates public order and customs in adjudication activities.The thinking of this article will be specifically developed based on the above three issues.In order to make the discussion in this article more focused,the author will mainly explore the impact of the financial regulations of the "one party and two associations" on the effectiveness of commercial contracts,and detail them as follows:(a)exploring which financial regulatory rules will affect the effectiveness of contracts(2)what characteristics should be provided by such financial supervision rules;(3)the way in which financial supervision rules affect the effectiveness of the contract;(4)how the people’s court should exercise its judgment on the effectiveness of contracts under the specific requirements of financial supervision rules Discretion.Through the solution of the above problems,the author looks forward to providing useful reference for resolving this dilemma between legal provisions and practical needs.In addition to the introduction and conclusion,this article is divided into three parts.The first chapter mainly includes the following: Article 52,paragraph 4,of the Contract Law stipulates "harm to the public interest",while Article 153,paragraph 2,of the General Principles of the Civil Law is "in violation of public order and good customs".The author demonstrates both It is synonymous replacement,and there is no difference in essence.In the current invalid contract system,violations of "mandatory provisions of laws and administrative regulations" and "violations of public order and good customs" are used side by side,which blocks administrative regulations at the cultural level.The possibility of affecting the validity of the contract is also the normative starting point of the issues studied in this article.The author comparatively analyzes these two provisions,and believes that "violating public order and good customs" is a higher-level concept on the value level,and "violating the mandatory nature of laws and administrative regulations" "Regulations" are just their specific manifestations,thus removing the institutional barriers when administrative regulations affect the effectiveness of contracts,and also discussing the legitimacy of juxtaposing the two,precisely to prevent public power from overly interfering in the field of private law;Comparative analysis of legal regulations and theoretical studies of public order and good customs at home and abroad,the author believes that neither The research on the concepts of “common order” and“good customs” should not be discussed too deeply in the concept of “public order and good customs”.Instead,the core connotation should be grasped through typed enumeration to resolve its ambiguity.And uncertainty issues.The main contents are as follows: The author combined with practical cases to explain the way in which financial supervision and regulation affect the effectiveness of contracts;it talked about the issue of mandatory regulations as "dichotomy".For the identification of effective mandatory regulations and administrative mandatory regulations,this article goes through After the analysis,the identification standards proposed by Professor Wang Liming were mainly adopted as a reference for Section 4 of this chapter;combined with practical cases and the author’s analysis,which financial regulatory rules were found to affect the effectiveness of the contract;and financial regulatory rules that could indirectly negate the effectiveness of the contract were proposed It should also have the following characteristics:(1)the rules must be authorized by the superordinate law and there is no conflict with the superordinate law,and no other alternative legal consequences are stipulated;(2)the rules are mandatory provisions of validity;(3)the validity The purpose of compulsory regulations is to maintain public order and good customs such as financial security,market order,and national macro-control policies.The last section of this chapter mainly talks about “national macro-control policies”.In order to make it more concrete,the author combined the practical jurisprudence with “penetrating” financial supervision policies to discuss,and discussed the national macro-control policies and financial supervision.The relationship between rules and contract effectiveness in judicial adjudication activities.The third chapter is mainly to solve the question of what rational principles a judge should adhere to when applying Article 153,paragraph 2,of the General Principles of the Civil Law.When a commercial contract violates financial regulatory rules and may be invalidated,it must be examined whether it is "violating public order and good customs".Based on the status quo of the Supreme Law,which does not provide a unified mechanism,this "order" and "freedom" The measurement of legal value will fall mainly within the discretion of the judge.To this end,the author introduces the principle of proportionality in public law,and after demonstrating the feasibility and necessity of its application in the field of civil law,I believe that the measurement method of "purpose-means" and the logical structure of the three-level sub-principle review It helps judges to judge the validity of contracts when financial regulations are violated,but also helps to limit the judge’s arbitrary exercise of discretion and maintain the core value of private law autonomy.In summary,the conclusion of this article is that under the existing legal framework of our country,the conflict between financial supervision regulations and the existing invalid contract system can be circumvented by the second content of Article 153 of the General Principles of the Civil Law,but this will mainly depend on the judge It is necessary to introduce the principle of proportionality to limit it.