On The Effectiveness Of Contract Which Violates Obligatory Provision

The fifth item of article fifty two in the Contract Law stipulates that the contract which violates obligatory provision in laws and regulations is ineffective. In recent years, criteria vary for the understanding of this problem in judicial practices. The issue of this thesis is: is the contract which violates obligatory provision in laws and regulations definitely ineffective? If not, how should we define the criteria and rules? The author of thesis deals with the above issue through the analysis of the quality and aim of the fifth item of article fifty two in the Contract Law, the understanding of the obligatory provision in it and the interpretation of this item.â… The quality and aim of the fifth item of article fifty two in the Contract Law1.The quality of the fifth item of article fifty two in the Contract Law In the theoretical and practical circles, some people treat it as guiding regulation, others treat is as interpretive or generalized regulation. If it only functions as a guiding regulation, it will be a retelling of the principle of legality in article seven in the Contract Law. If it is interpretive, it can be a supplement of article seven. The stipulation restricts the right of the judicial organs to investigate the contract which violates obligatory provision. Based on this fact, the summary function of this item should be definite to leave interpretive room for judicial organs, so that the judge can interpret laws reasonably in specific cases.2.The aim of the establishment of the fifth item of article fifty two in the Contract LawThe evolution of contract shows that individual orientation was changed into social orientation. It is mainly reflected in the vanishment of absolute autonomy of meaning and the interference of common will. For the...