Study On Effect Of Juristic Acts Breaching The Compulsory Rules

In our country, in judicial practice and theory of law, mainstream viewpoint is that which juristic act breaching compulsory rules is invalided, any juristic act breaching compulsory rules is certainly not provided with the effect on the private law. Government as the governor of society carry on a necessarily intervention to the juristic act of private is proper, but this kind of excessive compulsion to the private method realm is not really felicitous. So, theorists and practitioners have reviewed the point"invalided=invaliding"in recent years. Mutual promotion of academic and practice brought about a fundamental progress."Supreme People's Count's Interpretation of Several Issues on the Application of Contract Law of the People's Republic of China"issued in 2009 provides:"compulsory rule is effective compulsory rule", and abandoned the traditional viewpoint. But there isn't persuasive or an operational method to find out them. So this paper attempt to introduce the status of our understanding about effect of juristic act violating law; use comparative study method to learn from experience of other countries and find a feasible method. The paper consists three parts:Part I—the current situation about the effect of juristic acts breaching the compulsory provisions in China. Our understanding have three stages: the acts breaching laws, regulations, rules and national policies, plans are void; the acts breaching laws, administrative regulations and violating effective compulsive rules are void. Although we have made great progress, we must find convincing and feasible method.Part II—introducing the theory of invalidity of juristic act breaching the compulsory rule in foreign countries and Taiwan area of China. This part introduces the attitudes ancient Roman, Germany, Japan, Taiwan of China, UK and USA, concentrates on two questions:(1) All these countries distinguish between different types of compulsory rules at first, then analysis the effects of them. They insist on the concept of such: autonomy of private law is needed, while it is necessary of proper intervention of government. (2) Public interest and national interest can take various forms, we can't find a permanent criterion. We can only mainly inspect substantive elements, for example, rules'purpose, protective interest and transaction security, and sometimes inspect form elements: stage of perform, rules'target, focus.Part III—some related viewpoints regarding to the validity of the terms in the situation of the effect of juristic acts breaching the compulsory rules. This part first analyzes nature of the problem and our value orientation. The nature is relations autonomy of private law and intervention of government. Our country should protect the effect of the legal laws in priority. Secondly this part discusses the concept of the compulsive rule, which contains nature, range and law rank. At last, I discuss the criterion, which is that discussing it after classifying. It can be classified four kinds: self-rule-based rule, protecting particular main-based rule, ethics-protect-based rule and particular-policy rule. These methods mainly consider the substantive elements and sometimes form elements.