| The autonomy in private territory is an important principle to form a private relationship on civil law; the contracts are tools to achieve autonomy. The mandatory provisions have built the limits of the autonomy in private territory, and at the same time, they also limit the possibility of forming a private relationship by contracts. How to identify peremptory norms? Is the provision on violation of the mandatory norms a pure quote or general authorized terms to the judges? Are the results of evaluating the effectiveness of the contracts which violate peremptory norms only one choice of void? This paper is divided into four parts on the issues discussed above; the second and the fourth part are the focus of this paper:The first part is the case and the issues that rose up, I put forward my study focus by the judicial practice of violations of the mandatory provisions of the contract - how to identify violations of the mandatory provisions? How to evaluate the validity and the regular function of the Contract Law 52?The second part is mainly to solve the question: how to identifying the mandatory provisions. The mandatory provisions should be judged by the combination of judgments of form and substance , the first step is to see whether a provision contains the words such as "should" , "must", "shall not", "prohibit" and so on . Generally speaking, if a provision contains the words above , the second step must be taken to see whether it allows to change the content of the regulation; If a provision doesn't contain the words above , the nature of their subordinate departments of the law must be judged . However, the interests which the provision intends to adjust are the final judgment norm.The third part mainly introduces the modes of treatment on effectiveness of the contracts in civil law countries , such as Roman law, German civil law, Japanese civil law, China can draw on the following points: (1) The provision on contracts which violate the mandatory norms is not only a pure quote terms, but also a general authorized terms to the judge.(2) The effectiveness of violations should be evaluated from latitude of obligations on the public law and private law , if the responsibility on public law could achieve the provision's purposes, thereto ,the effectiveness of contracts in private law should not be affected; (3) The mandatory provisions belong to public order and good customs, breaching of public order and good customs and violations and breaching degrees are the substantive standards to evaluate the effectiveness of contracts .The fourth Part mainly to solve the question: the effect of the mandatory provisions to the contracts. Breaching of Public Order and Good Customs is the substantive standard on judging the effectiveness of de facto contract. In order to improve the operation of the standard, doctrines such as Object Doctrine and Focus Doctrine should be provided for standards of the formal judgment. there are great differences to the contracts between Private law and public law on enforcing mandatory provisions: private contracts which violated the mandatory requirements should be referred to not set up or not be enforced , but never be void .Only if it seriously violates the Public Order and Good Customs is it absolutely void .In public law ,because of differences in purpose of enacting the law, adjustment methods , functions, the impact on effectiveness of the contract is also different . In particularly, the contracts which violate mandatory norms in the Constitution shall be judged by the provisions which specify the Constitution's provision in other department law , if there is no provisions above , the validity of the contracts should be judged by the degree of breaching public order and good customs .The contracts which violate the criminal law and the security administration punishment are absolutely null and void; the contracts which violate the Administrative Law should be carried out in an integrated manner in accordance with the judgment norms above. |
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