The Mandatorynorm And The Validityof Contract

The main point of this article is that the switch-over clause is to switchover public policy contained in mandatory norms to private relations to theextent that policy goals could be best attained, without causing unnecessarydistortion to the freedom of contract.First, this article points out that no matter how the legislator works in theconvergence of the public law and the private law, the judge plays animportant role. The judge should have the last voice and the ability toproperly identify different mandatory norms in the civil law, and gives thereasonable interpretation according to different mandatory norms, and laysfoundation for the application.Second, before judging the effect of a contract, we should analyze thebenefit that the concrete mandatory norms protect in the purpose of the norm , and the compare it with the benefit of the contract. With submitting thepriorities of the benefit to the norm basis for the rule of prohibit of breach ofthe mandatory norms, we can come to the conclusion, that which effect ofcontract is applicable to the concrete breaching behavior. On concrete methodcontains three layers: abstract general interests, general practical priority, andthe further limitation of relations to factual different interests. The course ofjudgment will cease in any step when it comes to a conclusion, which theupheld interests of effect of the contract should get priority to protection. Inaddition, through out the procedure of balancing the different interests, weshould consider the typical social situations of China, such as the needs tonurse the spirit of autonomy of private law in social stage nowadays, and thededuction of special elements of the Chinese society.Third, the article states mainly private law's effectiveness of contractbreachs mandatory norms. The author holds the opinion that the private law'seffectiveness includes validity (but clients will bear other legal liabilities),nullity, and nullified buffer system in the middle of them.