On The Legal Acts Violating The Imperative Laws

This thesis systematically introduces the legal acts that violate the imperative laws, focusing on the definition of the legal acts, explains the regulation function of the legal acts violating the imperative laws and the judgment rules of the imperative laws, and summarizes the relating doctrines and evaluation criteria on the appraisal of the effectiveness of such legal acts. The thesis breaks through our tradition theory about the dual effectiveness appraisal system of the legal acts that violate the imperative laws. It's thought that we should adapt to the current development needs and adopt a more complex multi-effectiveness appraisal system. Based on the above understanding, the thesis finally makes some assessment of the relevant legal provisions in our country and proposes some suggestionIn the course of writing this thesis, the synthesis utilization of some methods is adopted, such as comparison, history, synthesis induction, and empirical analysis. Each part of this thesis is as follows:Introduction part mainly mentions from the relations between the self-government of the civil law and the public law's intervention, and briefly introduces the provisions on the legal acts violating the imperative law in different countries and areas, such as Germany, Taiwan, Switzerland, Japan, particularly the provision in the European unification contract law, and then draws out the topic of this thesis starting from our laws.The first part is to define the legal acts that violate the imperative law. This part introduces the nature and scope of the imperative law, the illegal content or form, and quantitative and qualitative aspects of violations. The thesis believes that, the imperative law includes the prohibition stipulation and mandatory stipulation. The legal acts violating the imperative law only refers to that the content (goal) violates the imperative law. The imperative law itself is a broad concept, including the constitution, laws, administrative rules and regulations, department rules and regulations, local laws and regulations. To judge the imperative law is a complex process, It can not only be judged in terms of the literal explanation.The second part defines the regulation function of the legal acts that violate the imperative law. This part taking Germany and Taiwan as examples, introduces the function values of two civil codes. There are mainly two functions: the first one is the basic function, which provides a pipeline for the public law standard entering the civil law domain; the second one is the technical function, namely the bringing in the regulation function, the explanation regulation function and the general provision function. The thesis believes that these two national correlation regulations function reflect the common character of the written law countries, which can be used to explain or to examine the regulation function of correlation stipulations of other written laws countries. Then the conclusion is that our relevant provisions should also be entrusted with essentially the same functions. The third part focuses on the effectiveness appraisal of the legal acts that violates the imperative law. This part introduces four theories about the effectiveness appraisal of the legal acts violating the imperative law and four kinds of the effects of the legal acts violating the imperative law. The thesis holds that each current theory existing in domestic and foreign has the certain one-sidedness. In this issue, we should first take the dichotomy of public and private interests, and then uses the logically coherent argument, namely the synthetic judgment theory, to carry on the effectiveness judgment. When making such effectiveness judgment in this way, it must pay attention to the adaptation functions of the interests balance theory and the proportion theory.The fourth part is the correlation stipulation flaw of our contract law and its legislation consummation. This part mainly elaborated the stipulation flaw in the article52 item5 of our contract law. It mainly displays in its rules established simply, and no proviso provision, so that this item makes the judge cannot exercise discretion fully. It lacks of due function of the general provisions, and it is incompatible with judicial practice, which also does not favor the social economy multiple development. This part also puts forward proposal for the establishment and consummation of this system in our future civil code.The conclusion part highly summarizes and concludes the whole text to end in this way.