Research On The Application Of Mandatory Provisions In The Contract Law

"The mandatory provisions of the laws and administrative regulation"in Article 52 (5) under the Contract Law have been focus of the theorists and parishioners, and whether to correctly understand and apply the relevant mandatory provisions therein shall directly affect the effect of the contracts of the parties thereto and thereby affect the trade safety and transaction order. The theorists have made a large number of researches and analyses on the mandatory provisions and divided them into the effect mandatory provisions and management mandatory provisions so as to have them distinguished. The Supreme People's Court has also promulgated the corresponding judicial interpretations to limit the mandatory provisions so as to avoid judicial arbitrary. However, the fact that the existing laws do not clearly define the connotation of the mandatory provisions and different judges have different understandings results in that the same case is decided differently. Therefore, this paper conducts discussions with the focus on the controversial issue of specific cases and on the basis of the detailed interpretation of the mandatory provisions in the Contract Law focuses on the elaborations on how to apply different mandatory provisions under different circumstances, hoping to be conducive to the judicial trial practice.This paper is composed of four parts, and conducts research along with the thought of practice - theory– practice, aimed to achieve close integration of theory and practice. The first part puts forward the issue, brings out related issues from the dispute over the Product Co-operation Contract, analyzes the controversial issue of the case, obtains the core controversial issue thereof from the different decisions by the first instance court and the second instance court, that is, whether the contract which violates the mandatory provisions therein is certainly invalid. The second part interprets the mandatory provisions in the Contract Law, including its legislative evolution, content analysis and theoretical discussion, summarizes the opinions of different academics on the mandatory provisions and makes analysis thereon. The third part is the specific application of the mandatory provisions in the Contract Law, including the type in violation of the mandatory provisions, the criterions for distinction of the mandatory provisions, and the issues which requires the attention in the application of the mandatory clauses. The fourth part is the conclusion, specifically elaborating with the focus on the aforementioned case how to apply the mandatory provisions in the Contract Law in the trial practice.