On Identifying The Invalid Contract

The valid of the contract is the value of private right acts that judged by law. Invalid contract system is a necessary intervention of the law on freedom of contract, by negative evaluation of the contract to guide the contracting behavior of the parties, the value of which is to maintain the social and public interests. However, the standard that listed by "Contract Law" in section52seems too broad on restriction of personal freedom, which should be balanced between freedom of contract and public interests, for the purpose to ensure the transaction security and socio-economic order based on respect party autonomy. Therefore, taking functional reflection on section52of "Contract Law" about the validity of contract, we should have a profound analysis of the current law on the problem about the invalid contract specification with respect to the ambiguity and operational difficulties that produced by the provisions of the existing law cited in the judicial practice and propose that legislative standards should be more detailed on the basis of comprehensive research and evaluation of domestic and foreign legal system and the existing research literature. For the realization of the meaning of the parties to the contract to effect the objective of maximizing, it would be very significant to study the problem on the basis of the current legislation. The process about the identification of contract from "Economic Contract Law" to the existing "Contract Law", mandatory intervention of the state is a key facto to affect the validity of the contract; it is also a problem that troubles the judicial practice. China is now in the initial stage of the socialist market economy, and economic development is the central task of socialist at this stage. If we can not grasp the proper identification of invalid contract, for the parties, the defaulting party would deliberately circumvent the law, and observant party subject to unnecessary economic losses, which will cause turmoil in the markets as a whole, and ultimately make the economic actors do not trust the feeling of the contract. thereby preventing the development of market economy. Thus, remodeling the reasonable standards of the contract has a significant value for the protection of the legitimate rights and interests of the parties of the market economy transactions and the stability of the legal order.In addition to the introduction and I language, this paper can be divided into four parts.The first part is about "the value orientation about the identification of the invalid contract". Freedom of contract is the basic principles of contract law. The legal effect of the valid and invalid contract embodies the value judgments of the state to the parties about their desired value; however, the nature of the invalid contract is a kind of restriction and intervention to the parties about their freedom of contract and autonomy. In order to ensure market transactions safe and orderly, order value is more important when is compared with the value of freedom. Thus, take the order value as the presupposition, the restriction on freedom of contract can better safeguard the security of market transactions. However, too much emphasis on the order value will be detrimental to the freedom of contract. On the basis of meeting the requirements of security and stability of the civil subject of the transaction, for the purpose to meet the inherent requirements of the market economy, the legal order and freedom of contract should be fitted.The second part is about "the invalid contract recognized by the comparative analysis", and has an identification of civil law and common law on the validity of the contract. France and Germany take good morals or public order as the principle provisions on the identification of the contract is null and void. The prohibition provisions gave the parties supplemented opportunity, which overcome the mechanical identification of the illegal contract, is null and void, and provided the conditions for the judge to save the validity of the contract. In Britain, the United states and other countries, invalid contract is known as the illegal contract. When the contract is identified as illegal, there will be two consequences:not enforceable and refused to provide any assistance to the parties. As the private law consequences of the illegal contract is too principle and in order to meet the social development to grant judges greater discretion, judicial practice has made exceptions to the decision to protect the innocent party in the contract.The third part is about the assessment of the invalid contract of the section52 of "the contract law" in our country, which has an assessment on the enumerative identified provisions of the section52of "the contract law". The mandatory requirement means the explaining of a mandatory requirement of the effect, it pointed out that no matter fraud, coercion, malicious collusion, or legitimate acts conceal illegitimate purposes, all of those can not become a reason to deny the legal validity of an act, and only the substance of the contract and public interests contrary was invalid.The fourth part is about perfect invalid contract standards recommendations. Freedom of the contact is the freedom of the parties, rather than the freedom of a party. If either party expands their freedom and rights, taking fraud and coercion, or a position of vulnerability of the conclusion of the contract, this not only violates the principles of good faith and justice-value targets, but also can not achieve a true sense of the freedom of contract. Under the premise of respect for human autonomy and defend human dignity, a little more than excessive freedom of the security function can be worked. Make invalid contract guiding case system for the purpose to make up their own shortcomings in the judicial trial process that the contract is found to be invalid and guide judicial officers to better grasp the connotation of social and public interests and effect of peremptory norms. Finally, the reference standard for the legislative judgment on the effectiveness of norms blank should be put forward on the basis of taking the effectiveness of social and public interests, the violation the laws and the regulations peremptory norms combined as the scientific recognized standards, and combining with specific cases for the purpose to.The research object of this paper is the identification of the invalid contract, which directly affects the validity of the contract, concerning a vital interest of the parties to the contract, intrinsically linking with the development of market economy, and being with common problems of legislation and judicial practice.To establish of the standard to identify the invalid contract not only has theoretical value, but also the value of the guiding role to the administration of justice, which has a practical significance.