The Standard, Idea And Approach Of Judging Lawbreaking Invalid Contract

This paper took communique cases and judicial policies released bythe Supreme Court as example, researched the standard, idea andapproach of judging lawbreaking invalid contracts in the judicial practice.This paper first normatively analyzed the standard of lawbreaking invalidcontracts which is described in article52(5) of Contract Law. Then thepaper combed the related academic research s history. On this basis, thepaper established the organizational structure for researching cases andjudicial policies.This paper selected nine communique cases to research, found thatthere were two key points about the standards of lawbreaking invalidcontracts in the judicial practice. First, the rank of “law” limits to the lawsand the administrative regulations. Second, the contract only breaking theenforcement provisions will lead to invalid, and the contract breakingarbitrary provisions or administrative mandatory provisions may not leadto invalid. This paper researched judicial interpretations, meeting minutes andother policy documents released by the Supreme Court, found that theSupreme Court adopted a cautious attitude towards affirming validity ofcontract, and prone to a lenient attitude towards affirming validity ofcontract. The judging standards of lawbreaking invalid contracts in thejudicial practice are the judicial idea of “leniently affirm validity ofcontract” and “cautiously affirm validity of contract”.According to research found that the judging standards and the ideaof lawbreaking invalid contracts above-mentioned are widely followed,but there are exceptions. Therefore, this paper reanalyzed the informationbeyond the standards of cases and judicial policies, thought that theSupreme Court adheres to the criterions of "status limit" and "contentlimit ", meanwhile emphasizes the considerations of freedom of contractand the relevant interests of contract regulations. Through consideringfreedom of contract and the relevant interests of contract regulations,benefit balance has become basic approach to confirm the illegal contracteffectiveness step by step from the emergent behavior in individualcontract. Article52(5) of Contract Law will show new value andsignificance in balancing the state intervention and freedom of contract.