Research On The Identity Of Effect Mandatory Provisions And Management Mandatory Provisions

Abstract:Effect mandatory provisions is the provisions that an act for violation of the mandatory provisions is denied validity in contract law. The management mandatory provisions is the provisions that an act for violation of the mandatory provisions is not denied validity, just to manage and punish it. The effect mandatory provisions and management mandatory provisions is a pair of concept proposed by the Supreme People’s Court in the Guiding Opinions Hearing civil and commercial contract disputes on the current situation. It’s applied for The Contract Law on the contract when it’s in violation of mandatory provisions about laws and administrative regulations, the contract is invalid. The distinction between the two is the requirements of legislation itself and the spirit of the autonomy of private law. Except as expressly provided by law about the two in judicial practice, there are a certain degree of difficulty about the specific identity. How to identify for both, we can analysis the mandatory provisions of the legislative intent, the object of the regulation, the party against whom, and the extent of damage to public interests. That we can identify the effect mandatory provisions and the management mandatory provisions, then recognize the validity of the contract. Violation of the effect mandatory provisions of the contract is null and void, while violation of the management mandatory provisions of the contract is general valid. Because the behavior of violation of the mandatory provisions is not belong to the effect mandatory provisions about the contract disputes of the construction, so the contract is valid. How to identify the effect mandatory provisions and management mandatory provisions, it is recommended to improve the identity of the two continuously from the following aspects:defined the validity of law and recognized standards against its behavior in the legislation, and typed collection and analysis; Judicial, continue to improve the measure of interest mechanism, more reasonably to constitute the validity of the contract that against the mandatory provisions. While improving their overall quality of the judge.