Typed Analysis And Review Of The Effectiveness Of Violate The Mandatory Provisions Of Contract

For violation of mandatory provisions of contract effectiveness, Exactly whenonly be punished by the "administrative law" or "criminal law", when is it needed tonegate the effect of private law, is one of the most disputed legal problem whether intheory or in practice, in our country in recent years. Unfortunately, the standards toidentify contract effectiveness which violate the mandatory provisions still very vaguein our country, until now. Displays in the judicial practice, the most prominent is inthe same case, apply the same law, not only the different courts or different collegialpanel in the same court, leads to different opinions. even if the Supreme Court, alsohave different opinions about the identification of the law is administrative regulationsor effective provision. The extreme instability Application of law not only severedamage the authority of law, also makes the public law regulation and the private lawautonomy contradictions increasingly apparent.Our country academic circles though given enough attention to the problem, butfor the study of the contract effectiveness, still give priority to with theoreticalresearch, and mandatory provisions has not yet been further classified according totheir features, however, extremely complicated social life, mandatory provisions,therefore, if the identification of the contract effectiveness which in violation of thecompulsory standard is not appropriate, not kill the spirit of autonomy of civil law, istoo conservative and governance policy effection. This article in order to put forward the shallow view of contract effectivenessstandards which violate the mandatory provisions from the Angle of court decisions,the thesis mainly includes the following three aspects of content:First, try the case typed mode analysis. Specific methods based on certainprinciples, the representative will practice violate the mandatory provisions ofcontract effectiveness analysis is divided into five types, specific for typing inviolation of the provisions of administrative contract, the subject matter to violate themandatory contract typed analysis, that violate the provisions of the contract typedpre-approval, in violation of the provisions of procedure compulsory contract typedanalysis and typed in violation of the regulations of mandatory confirmed contracteffectiveness analysis, based on the five types of specific case analysis, concludes thatall kinds of problems must be noticed when contract effectiveness.Second, to review the problems existing in the court. The contract effectivenesscriterion itself which violate the provisions of the mandatory is extremely complex,standards still has a lot of controversy, but the problems appear in practice make thecognizance of contract effectiveness more confusion. The author hope that throughthis review, can make both the academic field and practice field to deal with realproblems.Third, it is recommended that the case law is established. Through the analysis ofthe five groups of cases, the author thought the real difficulties of judging the contracteffectiveness standard which violate the mandatory provisions, is the value judgmentsystem. Interest measure how to choose and illegal purpose how to deny its privatelaw effectiveness is suitable, after all, is belongs to the category of value judgment.Therefore, the author suggested that the court guide by publish some cases in whichthere was a huge controversy over the contract effectiveness determination forpractice and the dispute belong to the category of value judgment, then graduallythrough piecemeal accumulation types, inductive become concrete, high predictabilityof the rules, so as to maintain the stability and predictability of the applicable law.