The Legal Study On The Issue Of Effect Mandatory Provision

Invalidity of contracts is one of the key issues regarding contract law researchand application, research on the cases of contract invalidity is crucial to thedevelopment and judicial application of contract law theory. Section52(e)of the PRCContract Law provides that the contract “violating mandatory provisions of laws andadministrative regulations” is invalid. Supreme Peoples Court, Several IssuesConcerning Application of the PRC, Contract Law Interpretation I further defines theaforementioned “mandatory provisions” as “Effect mandatory provision”. Thisprovision not only reduces the limit of Section52(e)of the PRC Contract Law, butalso brings new questions and problems to the judicial practice. Therefore, it isnecessary to do further legal research on “Effect mandatory provision”.In this article, legal research on “”Effect mandatory provision” includes fiveparts:In the first part is the introduction, from the stage of contract dispute,explainsthe problems and puzzles of “effectiveness of the mandatory requirements” inpractice mainly by examples, which leads to thinking and exploration on the issue of“Effect mandatory provision”.The second part,based on research and analysis on “mandatory provisions” anddiscussion of the meaning and understanding of the upper stage concept of “validityof the mandatory provisions”, discusses”effectiveness of the mandatoryrequirements”. This part includes analysis on the meaning and distinction standards of“mandatory provisions”, as well as the impact of violations of “mandatoryprovisions” on contract validity.The third part, by comparison, demonstrates the meaning and criteria todistinguish “mandatory provisions”, and then analyzes the meaning and distinctionstandards of “Effect mandatory provision”.The fourth part, on the basis of aforementioned legal analysis, discusses on thelegislative history and judicial practice of “Effect mandatory provision” in China, leads to the analysis of existing problems regarding “Effect mandatory provision”,and presents the author’s ideas on the meaning and standards of distinction of “Effectmandatory provision”. By doing so, the author wishes others may come up withvaluable opinions on this issue.The fifth part is this article conclusion, the scope of the effectiveness ofmandatory rquirement should be confined, that is " the contract should be invalid ifthe law, legislative regulation explicitly define as invalid". This is to avoid currentlythe inexplicitly judging standard for effect mandatory provision...