Study On Effect Of Contract Beaching The Compulsory Rules

In the field of civil law, it is always advocated that the contracts that violate compulsory rules are surely invalid. The judicial practice in china had adopted the theory, that is, the contracts that violate compulsory rules are bound to be held to be invaild. Undoubtedly, the state as a community manager can manage the lives of the people, but the people also have their independent domain that is the field of private law autonomy. The self-control of civil subject is a core element of civil society.With the development and growth of civil society, the fields of both civil theory and practice realize that contract which breaches legal compulsory standardization does not necessarily be invalid. Legislation in other countries does not provide that the contract which breaches the mandatory rule must to be invalid. Introduced in 2009, "Supreme People's Court on the application'The People's Republic of China Contract Law'Interpretation of Several Issues (2) " provides"Mandatory provisions refers to the effectiveness of the provisions is compulsory."Thus, the change is confirmed by the judicial interpretation. However, this change did not achieve substantial results, and it still need to be explained in the operating sense.This thesis attempts to carry on research on classification of compulsory rule, starting with the concept and classification of compulsory rule. At the same time, this thesis carry on research on the development process of effectiveness of contracts which breach compulsory rule to research the legal problems of the validity of contract. Finally, classifying analysis on the validity of contracts which breach compulsory rule. Full text falls into three parts: Part I, the concept and classification of compulsory rule. In the field of civil theory, there are different views on compulsory rule because the effectiveness of public law and private law is often mixed. So it is absolutely necessary to clarify this issue. What's more, though scholars have made research on classification of compulsory rule and put forward many research methods, these categories are often based on the different results, and it can not provide a path to solve the problem in judicial practice.Part II, research on the development process of effectiveness of contracts which breach compulsory rule. This part falls into there periods to study the issue. The three periods are the period of economic contract law, contract law and the new amendments to the period of contract law and, and after the period of contract law.Part III, research on contract validity. First of all, setting forth the value of the compulsory rule and explaining the necessity and limitedness of compulsory rule, and then propose a standard to judge the effect of contracts, that is, the standard of legislative purpose of interpretation. Secondly, to research the compulsory rule embodied in our legislation and to clarify the meaning of"compulsory rule"in Contract Law Article 52 Item 5. Finally, classifying analysis on the validity of contracts which breach compulsory rule based on the distinction between public and private law.