Analysis And Exploration On Violation Of Mandatory Provisions Of Effectiveness Of Contract

In judicial practice, we usually use Article52. Item5of the "Contract Law of the People Republic of China" as the general regulation to cognize that if the contracts are valid or not. And later the Supreme People’s Court of China has proclaimed Article14in the profile of "The Explanation (2) on Several Specific Issues of the Contract Law of the People’s Republic of China", in which they restricted the definition of "Mandatory Provisions" as "Effective compulsory regulation" and through this way narrowed the range of laws and regulations upon which to judge the invalidity of contracts to certain extent that helps for judicial practice provide guidelines. This explanation only added the statement of "Effective compulsory regulation", but did not make the connotation and identification standards of "Effective compulsory regulation" clear. And at the same time there are great disagreements on cognizing and applying of this issue among both the theoretical and practical circles, which make it very difficult to use integrated standards as specific guidance and practical application in judicial practice.This thesis was written and completed from the viewpoints of effective compulsory regulation. We compare and investigate the situation of the main civil-law-system countries on the issue of violation of the mandatory provisions related to both legislative theory and judicial practice. And then we elaborate on the issue of effectiveness of contract which violate mandatory provisions related to both legislative situation and judicial practice of our country though the gradation of legal norm orders. Through the analysis of disagreements on the cognizing standards of effective compulsory regulation among theorists as well as confusion generated during judicial practices and so on, we elaborate both the positive meanings and defects over the practice that the law of our country restrictedly explains mandatory provisions as effective compulsory regulation. Then we remodel the cognizing methods of effective compulsory regulation in order to achieve the goal of seeking its cognizing ways, and also put forward that normalizing judge’s discretion and insuring rightful verdict of specific cases, is one of the effective ways to seek rational judge of effectiveness of contract.