The Study On The Validity Of Contract Which Violate The Mandatory Provisions

Freedom of contract is the important principle of contract law and the civil law.It means that civil main body sign a contract to manage private affairs according tothe rational judgment, not affected by national power and other civil main body ofillegal intervention.But, any freedom is not absolutely, absolutely free, no freedom. So, in the lawoften can have a lot of mandatory provisions in order to make the contract in the legalbehavior in spaceFor historical reasons, in violation of the provisions of the contract mandatory,the judicial practice had to take a very strict contract effectiveness negative practices,however this not only damage the contract the principles of liberty, also in somedegree malignant encourages the breach. In this context, the new "contract law"article52stipulates the item5: violates laws, administrative rules and regulationsmandatory provisions of the contract was invalid, and in the law of contractinterpretation (2)"will" mandatory provisions "limit shrink as" effect of mandatoryprovisions ". Even so, there are still doubts in judicial practice.This article from the following three aspects to discuss this problem: the first partthrough the violation of mandatory standard contract effectiveness of comparisoninspection, the main analysis of ancient Rome, Germany, Japan, Taiwan and treat thecountries such as Britain and the attitude of the problem. The second part is thecurrent legislation and judicial practice, there’s trouble to analysis. Mainly probes intothe several problems:1. The violation of the mandatory provisions with violation ofthe public order of good morals relations;2. To mandatory norms do effect of limitedrationality or not;3. Play mandatory norms and sexual distinction of the necessity ofmandatory controls standard. The third part, the main countries and regions of theworld from the current practice in our country and comprehensive national conditionsof violation of the mandatory provisions contract effectiveness judgment path: from aliteral interpretation, standard purpose clearly explain where the mandatory norms,basically adopt measures of interests, to judge from the following several aspects andto specific discussion:1. The contract form illegal;2. The contract illegal content;3.The contract is illegal;4. To perform the illegal behavior situation.