On The Validity Of The Contracts In Violation Of Mandatory Rules

The validity of the contracts in violation of mandatory rules is a timeless subject, also is a deal with the basic theory of the relationship between the autonomy of private law and public law enforcement. In this paper the validity of the contracts in violation of mandatory rules as the research object,to abandon the view of the illegal that is invalid on the traditional legal theory and judicial practice.Puting forward principle of the interest balance of substantive judgment on the validity of contract, and focus to be balanced to achieve the freedom of contract and public law interests in the judicial process. So as to promote the stability development of social economy and protect the legitimate interests of the parties.In the long process of the rule of law from the era of the western Roman law to to China’s reform and opening-up, whether Germany, Japan, Taiwan as the representative of Anglo-American law system or continental law system. Form The legislation and theory research on validity of the contracts in violation of mandatory rules.the contracts is not all invalid, Just there are some differencesin the individual operating system.After inspection of the validity of the contract system in China, founding that due to the influences from traditional planning economy, the public power to interfere the freedom of contract more severely. The contract invalid phenomenon more generally. Affecting the formation and development of a market economy. Not conducive to the protection of transaction security. With the promulgation of the Contract Law of the People’s Republic of China and its two judicial interpretations. Limit the range of mandatory rules-the legal basis for the contract is null and void, The objective is to reduce the contract is null and void conditions. Safeguarding the economic benefits and determination freedom of the parties to the contract.Combined with comparative study, this article introduces the interest balancing principle to determine the validity of the contract, to grasp Compare contract meaning and consequences of the invalidity, Compare the parties’ freedom and their contractual benefits and public law norms and social public interest.Compare maintaining market transaction safety and security of economic operation order. Comprehensive assessment and the pursuit of justice, reduced effects of mandatory rules. And established the presumption of validity, relative efficiency, protect the goodwill of the principle, and strive to achieve the balance of the all parties interests.According to the study of the decision process of the validity of the contract, solutions to those problems from the construction of the legislative to judicial control. Limit the effectiveness of effective mandatory rules, in the procedural prerequisite. Build and enrich invalid redress regime to determine the effect of invalid. Invalid contract conversion and correction system to compensate for the negative effects brought about by the contract null and void, maximize the legitimate purpose of the contract and the legitimate interests of the parties.At the same time, utilize subject limitation, judging reasons, limitation of actions and strict procedures to protect the realization of this purpose.Through the above research, concluded that based on consensus of the progressive unification of legislative and theoretical, Measure of judicial discretion in the use of balancing of interest, comprehensive determine the validity of the contract, be treated with caution invalid, the balance of interests, that Is the proper way.