Study On The Identification Standards Of The Mandatory Provisions Of Contract Effectiveness

Around the contract "illegal and invalid" academia has been discussed for a long time.In order to reasonably delimit the boundary of the effective mandatory regulation,the academic circle has formed a variety of identification standards based on public order and good customs,standard object,standard purpose and comprehensive identification.However,the problem of its own standard is also more prominent,fuzzy,inconsistent,the applicable field is unclear,which leads to the judge’s discretion is too large.Reasonable identification of the effectiveness of the mandatory provisions cannot be separated from the fine standard analysis.Public order and good customs are applicable to the contracts that endanger state public order,restrict economic freedom,violate fair competition,and violate the protection of consumers and laborers.In terms of applicable rules,if the "laws and administrative regulations" are clearly illegal and invalid,they can be used as the auxiliary standard for the effectiveness of mandatory provisions.The laws below the administrative regulations clearly stipulate that the illegal and invalid will be applied through the value supplement of public order and good customs.In terms of application,the standard of basic rights can be divided into "the conflict between basic rights and social public interests" and "the conflict between basic rights and other basic rights".According to the applicable field,they are divided into the protection of basic rights and the realization of public welfare,and are carried out according to specific steps.The principle of proportion can be applied to the whole process of determining the validity of the contract due to its prohibiting excessive ontological significance and the methodological significance of rational analysis,and the specific rules should be examined layer by layer according to its own logical framework.