| Legitimacy is not a requirement for the establishment of a legal act,but a requirement for its effectiveness after its establishment.Effectiveness of legal actions is a prerequisite for effective,and only effective can produce enforceability.If the alternative behavior only satisfies the valid requirements and cannot be effective in the end,there is no need to apply the conversion system.Therefore,alternative actions should be required to comply with the effective requirements of legal actions.Furthermore,the invalid legal action conversion system is defined as: the invalid legal action has the effective requirements of another legal action,and it can be presumed that the party knows that the original legal action cannot achieve the legal effect,and then another legal action Take effect.The system of conversion of invalid legal acts has the functions of guaranteeing the autonomy of private law,promoting the spirit of civil law,safeguarding the interests of both parties and guaranteeing the safety of transactions.However,the current legislation of our country does not have the relevant provisions of this system,resulting in the judges being unable to follow in the process of adjudicating cases.In judicial practice,there is a situation of correct application,unused application,and confusion in use,and judicial decisions that incorrectly apply the conversion system account for a relatively high proportion of existing cases.Because the system of conversion of invalid legal acts is independent of the system of correction of invalid legal acts and the system of separation of effectiveness,the construction of this system is also conducive to the improvement of the system of mitigation of invalid legal acts.Therefore,our country has the necessity to construct this system.The civil codes of Germany,the Netherlands and other countries(regions) all provide detailed regulations on the system of conversion of invalid legal acts,and rich extraterritorial experience has laid a theoretical foundation for the construction of this system in China’s mainland.The first quotation of the "Dai Qing Civil Law Draft" and the application of the "Civil Code" in the Taiwan region of China in the mainland have shown that there is also soil in the mainland for the application of the system.The construction of a multi-level system guarantees that judges can reasonably exercise discretion,and the conversion system is applied within a legal and reasonable framework.The inevitable consistency of "meaning" and "expression" provides the possibility for the judge to speculate on the party’s inner meaning.China’s mainland has the feasibility ofconstructing this system.Limit the scope of the discussion on the system of conversion of invalid legal acts to the conversion of interpretation.Furthermore,the constitutional requirements of the system are as follows: the original invalid legal act is established and determined to be invalid,there are alternative acts that can take effect,and it can be inferred that the civil subject is willing to act as an alternative act when the original legal act is invalid.And further elaborated that under the premise of meeting the requirements of the constituents,the system of conversion of invalid legal acts can be applied only in cases where there is no right to dispose in good faith,partial independence is invalid,and the legislative purpose of mandatory provisions is not violated.In terms of legislation,the "General Principles of Civil Law" has come into effect,but due to the epidemic situation,the Civil Code has not yet been introduced.Therefore,there are two legislative paths: one path is to add a provision for the conversion system of invalid legal acts in the General Provisions of the Civil Code as a general rule to govern the entire Civil Code;the other path is to apply to the Civil Law when the former cannot be done.This provision is stipulated in the legal interpretation compiled by the Code.Whether it is seen in legislation or legal interpretation,this provision should exist as a general provision in the general provisions. |
