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A Positive Analysis Of Legal Consequences Of Void Contractual Act

Posted on:2009-06-03Degree:DoctorType:Dissertation
Country:ChinaCandidate:G L XieFull Text:PDF
GTID:1116360272984090Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
In view of new perspective and introduction of new sources,this dissertation focuses on the positive analysis of what are the legal consequences of void contractual act in Chinese legal system.To that end it proposes and demonstrates a framework for positive analysis of law based on facts,collecting more complete primary sources of laws especially judicial documents made or recognized officially or unofficially by the Supreme People's Court which had been ignored by researchers.Based on the Kelsen's Pure Theory of Law,this dissertation integrates Hohfeld's Theory of Legal Relations,Zweigert & K(o|¨)tz's Functionalist Theory in Comparative Law,Heck's Jurisprudence of Interests,Pound's Sociological Jurisprudence with Stakeholder Theory,this dissertation emphasizes that we should make research on positive law in light of two kind of fundamental facts including interest dispute de facto which is the object of legal adjustment and primary legal sources which are the manifestation of laws themselves.It manages to provide Stakeholder Analysis Method in Law,to display an analytic routine of Legal Characterization and Inverse Legal Characterization,and to systemically address Static System of Legal Categories,Positively Inverse Static System of Legal Categories and Negatively Inverse Static System of Legal Categories.Through strictly linguistic analysis of statute text of the legal system and comparative analysis of cases,this dissertation advocates that although the norms of voiding contract,the norms of restitution-compensation and the norms of forfeiture of property all are ius cogens in private law,they have different levels mandatory qualification.And it.concludes that the legal system has a primary function for restoration through the norms of voiding contract and the norms of restitution-compensation,which are to put the parties to as good as a position as that occupied by them before the contract was made.But in special circumstances the legal system also has the purpose to deprive the party of gains which has been acquired under void contract and to punish the party who violates the law.When having made comparative analysis of the court cases,the dissertation discovers that on the one hand,many of the Supreme People's Court cases considerably cannot meet the requirements of formal justice and procedural justice,particularly manifested by the fact that the courts treat the similar cases differently;on the other hand,the courts have made many creative awards which make up for the shortcoming of excessive simplicity of statues,consequently accumulating valuable experience in legal practice. In order to promote the healthy development of legislation and the justice,it is necessary to pay more academic attention on court case studies and commentaries.
Keywords/Search Tags:Void Contractual Act, Legal Consequences, Interest Dispute, Positive Analysis
PDF Full Text Request
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