| Judicial application of mandatory provisions in identifying validity of contract has always been a topic full of conflicting opinions for a long time.The Civil Code of the People’s Republic of China adjusts the contents of the mandatory provisions,and the changes from the original Article 52(5)of Contract Law to current Article 153 of the Civil Code represents careful consideration of lawmakers on legal text and the crystallization of long-term experience of practitioners.After the successful introduction of the new legislative norms,the clouds seem to clear,but actually Article 153 of the Civil Code still cannot reverse the nature of the incomplete norms of such mandatory provisions.Due to the lack of clear legal consequences of some mandatory provisions,judges have to make the values balancing and interests weighting on the basis of the specific mandatory provisions.Up to now,how to distinguish the mandatory provisions is still a recognized puzzle in the academic circle.At the same time,in practice,the absence of a clear and unified evaluation standard for the validity of contracts that violate the mandatory provisions makes it difficult for judges to determine the validity of contracts.Therefore,it is necessary to return to the practice itself to find the root of the puzzle in the application of the mandatory provisions in determining validity of contracts.The 1152 judicial judgments made during nearly a decade comprehensively and objectively reflect the status quo for judicial application on mandatory provisions in identifying contract validity.Based on these documents,using the case analysis method,we can dig the existing problems of judicial practice and contribute to in-depth analysis of and reflection on such problems,so as to provide insightful guidance for recognizing mandatory provisions in identifying validity of contract in the future.Mandatory provisions in the determination of contract validity have sufficient basis in judicial practice.The number of cases is increasing year by year in practice,and the distribution of dispute types is diversified and concentrated.According to the illegal elements of contract,the illegality of contract subject and the illegality of contract conclusion procedure are the main illegal elements of contract that lead to its invalidity.The statistical result shows that judges tend to support the invalidity of the contract in practice,accounting for 82%.At present,there are mainly two existing problems in judicial application of mandatory provisions on identifying contract validity.First,the dichotomy of mandatory provisions has no guidance for judgments.Judges’ reference to distinction between mandatory rules for validity and mandatory rules as the standard to determine validity of contract violates the logic of judgment.The dichotomy of mandatory provisions is only academic labels with no substantive connotation itself.It is just the description of the judgement results,but not the adjudicative standard.Second,judges often take public order and good customs as the standard to distinguish mandatory rules for validity from mandatory rules for administration,which not only misinterprets the real intention of the legislator for setting public order and good customs in civil laws,but also fails to make public order and good customs play the function as the miscellaneous provision.In practice,due to the lack of a clear and unified standard for the determination of contract validity,the judgment result is not satisfactory.The dichotomy,which is not bound by the existing law,can easily lead to the arbitrariness of judges,increasing the uncertainty of the judicial trial and leading to the danger of arbitrary justice.The problems existing in judicial practice can be mainly traced back to the laws and regulations themselves that the mandatory provisions rely on.Throughout the legislations on the mandatory provisions both at home and abroad,there are several legislative modes including monism and dualism,reserving provisions purpose and no reserving provisions purpose,depending on whether to merge regulations violating of law and violating public order and good customs,or whether to retain provisions purposes as a benchmark.Article 153 of the Civil Code adopts the mode of monism and reserving provisions purpose.Although it adds the new rules on reserving provisions purpose and the invalidity of contract violating good customs,the “three unchanged” problem existing in Article 52 of Contract Law is still to be settled.The core problem is that there still lacks a unified adjudicative standard judging cases on the validity of contracts violating mandatory provisions.As for this problem,the positions of judicial interpretations documents and judicially explanatory documents in the past 30 years are close to the same as those of legislative norms,and both of them adopt the dichotomy-oriented approach to the determination of contract validity.Examining the legal basis of mandatory provisions in determination of contract validity,we can see that,on the one hand,the judges’ judgments have a strong brand of consequentialism judgment theory,which has solved the injustice problem in particular case caused by excessive reliance on formal reasoning in practice,on the other hand,the judgments have some characteristics of legal paternalism,limiting and interfering with the freedom of the actor,so as to help the actor to avoid risks and protect the rights and interests of citizens from damage.However,both the consequentialist theory and the legal paternalism theory are unsatisfactory.As the former,critics argue that the judges are always trying to get rid of constrains of the current law because they judge the case according the desired results,while the latter is facing double crisis of the value dilemma and the practice dilemma in judicial application.Although the dichotomy about the mandatory provisions is not in the Civil Code,it does not mean that the legislator negates the judicial application value of dichotomy.In essence,the dichotomy judging mode takes public order and good customs as the standard to distinguish mandatory provisions,and the status quo and results of its judicial application are far away from the expectation of legislators.At present,there are two opposing viewpoints on the classification of mandatory provisions in the academic circle.The former takes conceptual connotation,comprehensive pluralism,consequences of behavior effectiveness and normative purpose as the classifying criteria,and intends to reconstruct the type of mandatory provisions.Criticizing the dichotomy,the latter thoroughly negates the guiding significance of typology of mandatory provisions to judges.However,the wrong dichotomy method does not mean that the direction is going wrong.The typology of mandatory provisions in the framework of the system is worthy of affirmation.The typology of mandatory provisions with normative purpose as the standard not only has the guiding significance for judgments,but also can prevent arbitrary adjudication from the system.However,excessive formal justice will inevitably lead to excessive reliance on authoritative texts,which needs to be corrected properly by the judges’ discretion.We should advocate the idea of giving priority to formal justice while considering substantive justice,and insist on the categorization of mandatory provisions based on normative purpose as the main way to judge cases concerning contract validity in assistance of judges’ value judgment and interest measurement to make up for the deficiency of normative system.Public order and good customs are the core of the judicial application of mandatory provisions in the recognition of contract validity.Although the public order and good customs have some problems such as the abstraction of concept and rheology,their functions in restricting the autonomy of private law and complementing the development of law are irreplaceable.It is not only the crystallization of the transformation of morality into legal norms,but also plays a vital role in maintaining harmonious and stable social order and carrying out the socialist harmonious values.As the miscellaneous provision of Article 153 of the Civil Code,public order and good customs are to remind people that cases involving validity of contract have another path to explore,but in practice public order and good customs and mandatory provisions overlap.There are more circumstances when public order and good customs play the role to enhance persuasive function in judgments on effect of contract.Moreover,they also shoulder the work of identifying the type of mandatory rules,and therefore we can say that the role of public order and good customs in determining validity of contract has been misplaced in adjudicating the case of contract validity.In practice,the confusion of the relationship between public order and good customs and mandatory rules,along with the vagueness of adjustment field can easily lead to the uncertain legal consequences of contract effectiveness.In order to provide a better positive role of public order and good customs,it is particularly important to clarify its role in contract validity cases,that is,in terms of application order,public order and good customs can be applied only when the legal rules are exhausted.In terms of the field of contract validity adjustment,public order and good customs and mandatory provisions should have different independent field of division of labor,which should not be easily confused in practice.In practice,there are few cases in which the result can be obtained simply by the inclusion of legal norms,and so we must seek the judging path from substantive dimension and methodology.On the one hand,as for the way of substantive perfection,we should stipulate the type and standard for the purpose of regulation,and thereby judge the validity of the contract.In practice,there are six types of mandatory regulations with high frequency: internal management mandatory regulations,external order mandatory regulations,market access mandatory regulations,administrative management mandatory regulations,ethics mandatory regulations and policy mandatory regulations.The judicial data study and judgment cases show that the violation of the first two kinds of mandatory provisions generally does not affect the effect of the contract.In contrast,the contract violating the last four kinds of mandatory provisions faces a higher probability of negative evaluation,but such conclusion can not be generalized.The judge still needs to analyze the validity of the contract according to the specific case.On the other hand,as for the perfect path of methodology,we need to adopt legal interpretation methods so as to make up for the shortcomings of typology within the systematic framework.Among them,the literal interpretation should be the first,system interpretation method can explore the status of norms in the system and find the relationship of related provisions in the context,and the teleological interpretation method as the highest level method can analyze the legislative intent of mandatory provisions,by which we can make interest weighting guided under the proportionality principle.Of course,interests measuring must conform to the operating rules of our judicial application,and the proportionality principle limiting judges’ discretion should also be under scrutiny. |
