Study On The Conversion Of Nulity Of Juristic Act

As one of the important legal systems in continental legal system, legal act systembear double task——maintaining and limiting autonomy of the will. These two task is acontradiction. In order to maintain autonomy of the will, invalid system of legal acts isresponsible for limiting autonomy of the will. However, there is not only a large number ofinvalid legal acts can not maintain autonomy of the will, but destroy it. In order to maintainautonomy of the will and ease the invalidity of legal acts, conversion of nullity of juristic actcame into being. In this paper, the first juristic act is refered to original one and converted oneis called to alternative juristic act.This paper is consists of three parts: introductory remarks, main body and endingremarks. Introductory remarks,by the introduction of civil society advocating freedom, butsince the modern, power intervention in people’s lives excessively, there are a large number ofinvalid legal act to undermine the autonomy of will,leads to the theoretical background ofconversion of nullity of juristic act. Ending remarks summarizes this paper and points out thelack of this research.The most import share of this paper is devoted to the major body which consists ofthree further parts.The first chapter introduces based theory，way and legislation of conversion of nullityof juristic act. This part is the basis of this paper. Firstly, introduce the based theory ofconversion of nullity of juristic act, including the concept and the rationality in theory ofconversion of nullity of juristic act. Secondly, introduce the ways of conversion of nullity ofjuristic act which has laws on conversion, and interpretation on coversion,but exclude“conversion agreement”. Thirdly, after adopting the origin of the system and comparative law,summary legislative experience: to develop general terms as the representative of Germany;France, represented by the terms of specific one; Italian represented not only the general terms,but also specific terms. Those experiences is bedding for the third chapter.Chapter two puts an effort on legal requirements of the conversion of nullity of juristicact, including positive and negative. Positive elements include: invalid first legal act, the willof converted and alternative legal act. Conversion of nullity of juristic act aims to recover invalid juristic act, so the premise of this system is the first juristic act is absolutly invalid butestablished. Just here to meet the the general elements of establishment, without having tostrictly comply with the special elements of the establishment. Partial and relative invalidityshould be applied to different situation and consider whether it can be converted. Conversionshould respect the autonomy of the will, the will of conversion includes the will of alternativelegal act and whether the parties agreed to convert. The will of alternative legal is determinedby economic goals of the first legal act. If the parties opposed to convert, even againstseemingly irrational, as long as a sufficient reason to put forward, will of the parties should berespected. Because the alternative act is the first legal acts of the parties to achieve the pursuitof economic purposes, and other legal acts may, therefore, the will of alternative legal act is aguidelines for conversion.The elements of the first legal act composes the alternative legalact,and the alternative legal act will go into force independently, so the elements that alreadyexist should be sufficient to support the necessary elements of an alternative legal effect.Alternative is the use of legal remedies of the parties, so the economic goals alternatives toachieve can not go beyond the first legal acts want to achieve.Negative elements:when thefirst legal action against the public interest, the legal act is invalid.Because notcondoned,such an invalid legal act can not be converted.Chapter three based by chapter one and two is mainly on we should introduceconversion of nullity of juristic act. First, introduce the existence of a large number of invalidlegal acts reality, the concept of maintaining autonomy of will and resource conservation,protecting the innocent, the purpose of maintaining the safety of the transaction call forintroduction of this system. Second, it is possible to introduce because of weak judiciary,judicial trial and scholars calling for. Finally,after concluded foreign legislation and case,suggest we should formulate general and specific terms, and analysis the specific term in allareas of civil law.