| The first paragraph of Article 153 of the Civil Code of the People’s Republic of China clearly stipulates the legal level for determining the invalidity of a contract,that is,the legal norms for determining the invalidity of a contract are limited to the mandatory provisions of laws and administrative regulations.This is intended to maintain the freedom of trade between private entities and the normal order of the market,providing a relaxed trading environment for private entities,with a view to avoiding excessive interference by administrative regulation in normal civil activities.In specific judicial practice,most courts still adhere to this criterion,directly determining or reasoning that contracts that violate departmental regulations are valid.However,some courts have also attempted to circumvent the legal hierarchy limit and,for the purpose of safeguarding public interests,have demonstrated the possibility of departmental regulations affecting the effectiveness of contracts in their reasons for adjudication.Whether and how departmental regulations affect the effectiveness of contracts is a realistic issue that needs to be addressed.It is not advisable to exclude departmental regulations from the legislative design of determining the validity of contracts.First of all,there is a suspicion of overhead national hard control.This will significantly reduce the binding force of departmental regulations on the civil actions of private subjects,and is not conducive to the legitimate maintenance of public order and good customs.Secondly,the existence of mechanical application of legal provisions in court decisions is not conducive to the maintenance of judicial justice.Many courts conclude that a contract is valid only on the basis that the departmental rules violated by the contract are not mandatory provisions of laws and administrative regulations when determining cases of contract invalidity.Thirdly,it is difficult to cope with complex and volatile economic relations.Economic activities are not immutable,and departmental regulations respond to economic issues in a developmental manner.Finally,increasing administrative costs.When the provisions of departmental rules and regulations cannot restrain the civil behavior of private entities,it is necessary to continue to adjust the regulatory means,resulting in an increase in regulatory costs.As a formal legal source,departmental regulations play a mandatory and binding role,and timely formulate corresponding legal norms for new issues.This can achieve the effect of standardizing civil legal acts and effectively filling legislative gaps.In determining the impact of departmental regulations on the effectiveness of contracts,courts should first specifically address the normative purpose of specific provisions of departmental regulations;Secondly,the principle of proportionality should be brought into play to demonstrate the appropriateness,necessity,and balance of prohibitive provisions in departmental regulations;Finally,it is necessary to judge the legal consequences of determining the invalidity of contracts based on departmental regulations,and to avoid departmental regulations becoming illegal means for offenders.Standardize the adjudication path by which departmental regulations affect the effectiveness of contracts.Firstly,the principles of autonomy of will and freedom of trade should be respected.The court should maintain a prudent attitude in determining whether departmental regulations affect the effectiveness of contracts,taking the principle that departmental regulations do not affect the effectiveness of contracts,with the exception of affecting contract effectiveness.Secondly,if a department regulation is explicitly authorized by the specific provisions of the upper law and the specific content specified in the department regulation can be included in the specific provisions of the upper law,then if the contract violates the department regulation,the validity of the contract can be determined in accordance with Article 153,paragraph 1,of the Civil Code;If it is not authorized by specific terms,but only by abstract terms,it is necessary to conduct comprehensive identification in combination with specific terms to avoid abusing the path of "laws and administrative regulations" authorization;If there is no specific authorization in the superior law,and departmental regulations do have restrictive provisions on the content and effectiveness of certain types of contracts,and the contract content does have the possibility of violating public order and good customs,a judge is required to determine the normative intent of departmental regulations,determine whether it is necessary to determine the invalidity of the contract in order to protect public order and good customs,and determine the validity of the contract in accordance with Article 153,paragraph 2,of the Civil Code.Finally,case analysis is the core.It is necessary to give full play to the discretion of judges,relying on their solid legal foundation and practical experience,to make comprehensive value judgments on whether departmental regulations affect the effectiveness of contracts,clarify the normative purpose of departmental regulations,give play to the value measurement role of the principle of proportionality,and consider the legal consequences of invalidating contracts based on departmental regulations,in order to achieve a balance between public interests and private rights. |
