Research On The Law Effect Of Contract Violating Mandatory Provision

The 52nd clause of the contract law is stipulated that the contract which the regulations mandatory provision of law,the administrative laws are invalidated . this legal system of "violated = invalidating " are set mind on actual judicial practice. Large amount of contract are always decided invalidated. That the private law exercises autonomy is basic principle of the contract law. State intervention must be within necessary limit. Thus, this paper thinks that, not every contract breach of mandatory provision is invalidating without exception. Full text is made up of five parts:Foreword,starting with the inactive effect of the regulation about contract valid violating a mandatory provision, point out that there are many problem in present regulation. It is very necessary that structure this regulation again.First part: the comparison research about effect of contract violating mandatory provision. Analyzing by the fact that legislation example and theory of Germany, Japan , Taiwan area in our country, draw the conclusion that not all of the contract violating mandatory provision is invalid in these country and area. Both the legislation and judiciary to this problem have shown very big cautiousness in these country and area.Second part: the thought about effect of contract violating mandatory provision in our country. By carding the legislation evolution process of contract violating mandatory provision in our country ,point out the reason which result in this process is that lacking of the modern private law spirit and tradition which with the core of contract liberty. And then, introduce the attitude in actual judicial practice and scholar's theory research in our country.Third part: Again structural about the system of effect of contract violating mandatory provision. First of all, ought to have a limpid boundary stablely to the mandatory provision. Second, divide mandatory provision into two types: mandatory provision of private law and mandatory provision of public law. In private area , Public good order custom is the basis of deciding effect of contract violating mandatory provision. In public area, the contract violating effect regulation lead to invalid, the contract violating banning regulation is not necessary invalid. How to judge which is effect regulation and which is banning regulation, should be decide based on legislation purpose. which have direct relevance with business is effect regulation, while which not have direct relevance with business is banning regulation .And also should compare law benefit protected by mandatory provision with law benefit embodied by contract behavior at the same time.