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Theory Of Legal Mandatory Norms Affects Contract Effectiveness

Posted on:2014-04-08Degree:MasterType:Thesis
Country:ChinaCandidate:X XuFull Text:PDF
GTID:2296330425979262Subject:Economic law
Abstract/Summary:PDF Full Text Request
Section52(e) of the PRC Contract Law provides that the contract violating mandatoryprovisions of laws and administrative regulations" is invalid. On the basis of legal analysis,the dominant ideology deems that it is a transformable provision, like the "pipe" between thepublic law and the private law, to invite the hand of government intervening the market.Although how to control the "pipe" is out of their conclusion, almost everyone agree to givethe judge’s discretion to solve this problem. I agree, too. But think twice, this method cannotsolve this problem once and for all, instead, it takes great uncertainties into our judicialpractice. On the legislative level, Supreme Court’s several issues concerning contract lawinterpretation I and interpretation II further defines the aforementioned "mandatoryprovisions" as "effectiveness of the mandatory requirements" and this is a huge thing,breaking the previous single judgment mode "violation equals to null and void". Thisimproved the legal system of PRC and promoted the democracy of our country.But this interpretation is not clear enough in itself, e.g., we do not know the judgingstandard to "ineffective mandatory". It is like to answer a question with another question, andyou still have the problem, not the answer. From the aspect of judicial practice, it is likely alittle shortage of analysis when the court made the judgment for this. It is not the judge do notwant the logical analysis, it is they cannot.How to make the judge fully understand the "contract law" the provisions of article52paragraph (e) and correctly understand the two judicial interpretations and to maximize itspositive role is the primary problem, and it is necessary to do further researches.This thesis applies the methodology of case study and theory with practice. It induce acase named Wu Hongsheng VS Chen Sheng in the right for land using transfer contractdispute and make it as a breakthrough point, trying to analyze why the Section52(e) of thePRC Contract Law and its two interpretations inadequately in trial, and make it for betterknowing, using and improvement of the regulation through the useful discussion.This article includes introduction and text two parts, introduction; the text is divided intofive parts: The first part (Chapter One), for the re-introduction of the basic facts of the WuHongsheng and Chen Sheng, land use right transfer contract dispute. The case is the focus ofthe controversy is the question of the nature of the provisions of the Urban Real EstateAdministration Law38"is not legally registered to receive the real estate ownershipcertificate, may not be transferred," that the provisions of the effectiveness provisions ormanagement provisions. The focus of controversy in this case amplification of a law that isleading to the effectiveness of provisions of the contract invalid, and the focus of the disputeat this stage of the judicial practice in larger quantities and more difficult to determine.The second part, from the perspective of the concept itself, the author briefly explains thepresent theoretical circle of law and absolutely mandatory standard definition.The third part, to analyze the "contract law" article52paragraph (e) from themacroscopic Angle and its functioning, we can build a specific application of understandingfoundation.The fourth part, this part is the focus of this thesis, the author attempts to balance theinterests of existing and the theoretical basis of discretion, using Mr. Yamamoto’sproportionality as framework, building a more practical "hierarchy type proportion principle".
Keywords/Search Tags:Contract law, Legal mandatory provisions, Proportion principle, thethird order benchmark system, Hierarchy type proportion principle
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