Analysis Of The Effectiveness Of Private Lending Contracts With Lending As Their Regular Business

China is a country of civil law system,which follows the principle of ruling the country according to law and judging cases according to law.When state control is injected into the field of private law,it is bound to affect the validity of the field of private law.The private lending behavior,which takes lending as a regular business,is closely related to the interests of the parties concerned,and also has an inseparable relationship with the national financial order.Therefore,the determination of the validity of such contracts belongs to the boundary zone between private law and state control.Therefore,how to identify this type of case has become a difficulty in judicial practice.This paper holds that the determination of the effectiveness of mandatory norms is the key to solve this problem.Therefore,starting from the theory and practice of mandatory norms,this paper explores the path of the determination of the effectiveness of private lending contracts with lending as their regular business.In addition to the introduction,the text is divided into three parts:The first part is the distinction and identification of the effect of compulsory norms.Based on the literature review,this paper discusses the theoretical research on mandatory norms in various countries,and finds that there is a consensus framework for countries to determine the effectiveness of mandatory norms.Through sorting out the framework of consensus,this paper discusses the "five university theories" under the framework of consensus,namely "dichotomy","Prohibition of norms","intention of norms","principle of proportionality" and "public policy theory",respectively,from the perspective of distinction and identification of the effectiveness of mandatory norms.At the same time,this paper summarizes the concept and classification of "mandatory norms" at the beginning,in order to better understand the validity of mandatory norms.The second part is the theory of judicial discretion application of compulsory norms.This part highlights the direction of the determination of the effect of mandatory norms in judicial practice.There are mainly the following two directions:first,the negative judicial discretion application theory,which includes the judicial discretion application according to national policy and machinery;second,the positive judicial discretion application theory.In the positive theory of judicial discretion,this paper discusses how to limit the discretion of judges in the determination of the effect of compulsory norms.Through the integration of theory and practice,it concludes that the discretion of judges should be limited according to the principle of proportionality and the purpose of norms.The third part: From the perspective of mandatory norms to identify the action effect of lending as regular business.This part is based on the research of the cases in the judicial practice of the folk loan contract with the loan as the regular business.Through the interpretation and evaluation of this kind of cases and the related articles,it is found that there are many problems in the recognition of the effectiveness of the folk loan contract with the loan as the regular business by the courts at all levels.Therefore,based on the theory of the first part and the second part,this paper puts forward some suggestions on the confirmation of the effectiveness of private lending contracts with lending as their regular business,in order to provide reasonable opinions for the confirmation of such contracts and guide judicial practice with appropriate theories.