Violation Of The Effectiveness Of The Mandatory Provisions Of The Contract

The Paragraph 5 of article 52 in Chinese contract law provides that mandatory provisions of laws or administrative statutes are violated. This article has the pipeline function by which the public law goes to the civil law.this means that more and more mandatory provisions of public laws can deny the validity of contract.we should guard a pass about the pipeline to avoid from damaging the system of civil legal acts. However, Compared with other countries ,our study on this article is backward. In judicial practice, how to applying this article, the judge is confused.The author studies in comparative way on the validity of contract of mandatory provisions of laws violated in Germany, Japan and Taiwan, Britain. These countries are very careful about this question.they think that the validity of contract of mandatory provisions of laws violated is not all invalid. the validity of contract of mandatory provisions of laws violated should be to decided on a case by case. And the second part ,the author choosed some cases very carefully to generalize the rules which is good to analyzing the validity of contract of mandatory provisions of laws violated.namely ,first of all ,we should research the purpose of the mandatory provisions of laws. Secondly, researching if the purpose of the mandatory provisions of laws is or not incompatible with the validity of contract of mandatory provisions of laws violated. if the purpose of the mandatory provisions of laws is incompatible with the validity of contract of mandatory provisions of laws violated,we should not deny arbitrarily the validity of contract of mandatory provisions of laws violated.we should balance the two legal interests incompatible which is more important so that we can decide the validity of contract of mandatory provisions of laws violated.If we think the legal interest of mandatory provisions of laws is more important, we should not deny arbitrarily the validity of contract of mandatory provisions of laws violated,we should pay the utmost attention to more moderate negative evaluation when we balance the two legal interests incompatible case by case,such as ,corrections effectiveness, invalid conversion, backward invalid, partial invalidation,relatively ineffective,revocable changeable,and so on .the system of the validity of contract of mandatory provisions of laws violated will be perfect. Finally,the author gived legislative advice about the system of the validity of contract of mandatory provisions of laws violated: Violation of law mandatory provisions of contract is invalid,but the judge think it is not invalid by balance case.