Violation Of Mandatory Provisions Of The Legal Validity Of An Act

In our country, in judicatory practice and theory of law, mainstream point of view is that which juristic act breach compulsive rules is invalid, any juristic act breaching compulsive 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 excessiveness compulsion to the private method realm is not really felicitous. In order to solve this problem, this article divides into four parts. The argumentation and research surround the angle of view of comparative jurisprudence and the immanent reason of judging the effectiveness of juristic act breaching compulsive rule. The argumentation and research surround the angle of view of comparative jurisprudence and the immanent reason of judging the effectiveness of juristic act breaching compulsive rule. And on the elements of these argumentation and research, I put forward some advices of the standpoint and material measure of our country about the problem.The first part" comparative jurisprudence research of breaching compulsive rules", this article explain the related thesis of the paper by comparing the standpoints, theory and prejudications of several countries and regions' law at homology problem, the problem mainly includes a private action, its responsibility of public law and the judgement of effectiveness under private law of a private method juristic act which breach compulsive rules can be differentiated; synthesize form main factor and substantial main factor to judge of a juristic act breaching compulsive rules; should look for more relaxative method besides judgeing a juristic act breaching compulsive rules invalidation; The second part" theory and juridical practice present condition of our country"; The third part "autonomy and compulsive-the immanent reason of judging the effectiveness of juristic act breaching compulsive rule", consider the rationality and justice of the theory of juristic act breaching compulsive rules in different period by comprehending principle of autonomy of private law, enucleate that that we should stick up for the principle of autonomy of private law and the effectiveness of private law to the best of our abilities is reasonable and allowable; The four part" construct the system of breaching compulsive rules renewedly", in the angle of view of the effectiveness rank of rule, the rules judging the effectiveness of juristic act breaching compulsive rule should be restricted in law and administrative regulations. In the angle of view of the kind of rule, the compulsive rules in the paper should be limited by public laws scope. enucleate the standpoint and material measure namely compulsive rules are divided into some types—rule of autonomous, rule of jus disponendi, rule of ethical and criminal, rule of policy then respectively processing by analysing the immanent reason of judging the effectiveness of juristic act breaching compulsive rule and researching comparative jurisprudence. Breaching autonomy rule, should not be chastised by public law and regulation; Breaching jus disponendi rule, the jus disponendi should be handed to opposing party; Breaching ethical and criminal rule, absolute be of no effect; Breaching policy rule, should synthesize the formal basic—phase of perform a bond, kinds of rule, center of gravity of rule, etc and the essential basic—degree of breaching the purpose of rules, essentiality of the behalf protected by rules, etc to judge the effectiveness of juristic acts. But private right is not respected and judicial power is always intervened by executive power, so the formal basic should be primary factor when we judge the effectiveness of a juristic act.