On The Influence Of Mandatory Norms Upon The Validity Of Contract

The 52(5) of Contract Law provides that a violation of laws and administrative regulations of the mandatory provisions of the validity of the contract is void. The most severe result is to sentence the contract is void, if violation of laws and administrative regulations, the contract will be void? The essence of this problem is to weight and balance the freedom of contract and the intervention of public power. The problem of the influence of mandatory norms upon the effect of contract has not got sufficient study in the theory, and there is no agreement in the practice. This paper defines the definition of peremptory norms and types firstly, through interpreter the purpose of article 52(5) and then analyze the structure of the clause, prove that the contract which violate the mandatory norms is to violate the specific mandatory norms in case but not article 52(5) of contract law. So we have to analyze the benefits which specific mandatory norms protect, then judge that which should be protected firstly through compare the benefits which specific mandatory norms protect with the benefit of the contract. Thus we can come to the conclusion that if should apply to Article 52(5) of Contract Law, as well as the effect of the contract. On this basis, reference concrete case to determine the above mode, and then establish the correct model of application of article 52(5) of contract law.This article is divided into six parts:The first part is introduction. In this part, the article puts forward problems, analyses current research status of inland academic circles and judicial practice field, summarizes characteristics and defects and points out the crucial reason of problems is that the current research hasn't realized basis of mandatory norms, in other words interests behind norms, and hasn't discussed application and concrete mandatory norms of the item five, article fifty-two of Contract Law by means of purposeful interpretation.The second is definition of concept and classification of mandatory norms. In consideration of complexity of concept of mandatory norms, it is necessary to clear and classify it first. In consideration of diversity of appellation of "mandatory norm", it is also necessary to normalize it. "Mandatory norm" is used most in writing, covering meaning of "compulsoriness" and "prohibition". Then, we get value that could be used for reference in comparison with legislative pattern of various countries and Taiwan.The third part is comparison of legislative pattern. In comparison with legislative pattern of various countries and Taiwan, we get value that could be used for reference.The fourth part is analysis of the Article 52(5) of Contract Law.This part is aimed at ascertaining structure and requirements of application of the item five, article fifty-two of Contract Law. The structure is that contract which breaks the law and mandatory provision of administrative laws and regulations is invalid, but except that purpose of law and administrative laws and regulations is not to negative effectiveness of contract. The requirement in application is to offer basis for application of concrete mandatory norms when mandatory provision of law and administrative laws and regulations have no explicit provision for consequence breaking the mandatory provision.The fifth part is comprehensive comment and analysis of the influence of effective mandatory norms upon the validity of contract. This part firstly discusses standard for definition of effective provision, points out that basic standard for distinguishing effective mandatory provision is comparison of interest of mandatory norms and freedom of contract, comprehensively measures above interest from angle of theory and practice, and then decides efficacy of contract that breaches mandatory provision.The end part is epilogue, which is the conclusion of the whole article. This part works out that material meaning distinguishing effective mandatory provision is to apply effective mandatory provision. It is direct basis for determine validity of contract that breaks mandatory norms. Only character of mandatory norms is judged and weighed comprehensively, concerning legal provisions could be applied exactly and properly.