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Public Policy In American Contract Law

Posted on:2015-10-25Degree:MasterType:Thesis
Country:ChinaCandidate:Y L TangFull Text:PDF
GTID:2296330428461820Subject:Comparison of the Law
Abstract/Summary:PDF Full Text Request
The public policy in American contract law has always occupied an important position in the judicial system of the United States. When performing a contract will be obvious harmful to the public interests, the court will declare the contract unenforceable on the grounds of the public policy. Given to the abstract connotation of the public policy, it is often difficult to apply in the legal practice. So the Restatement (Second) of the Contract provides several factors which could be referred to when applying public policy. On the other hand, the court developed different types of contract that against public policy after centuries of judicial practice. At the same time, scholars classified the public policy in contract on the basis of the domestic case. As a result, the public policy in American contract law has become gradually mature.In China, the research of the corresponding Public order and Good custom has just started. The first public policy case in China——Sichuan Luzhou Legacy Case just happened in2001. Since then, scholars began to pay attention to the function this principle contributed to in the field of contract law and other private law. The definition of Public order and Good custom is abstract as well as public policy, and equally hard to operate in the judicial practice. So reference to the United States classification method of public policy and the factors to measure the interests can provide some guidance for judicial practice in our country.This paper is divided into four parts:The first part is the summary of public policy in American contract law. This part mainly introduces the connotation of public policy and its history. The public policy burgeoned between the11th century to the13th century in English common law, and established by a case happened in1775. After the independence of the United States, the public policy got further development.The second part mainly introduces the effectiveness of the contract contrary to public policy and distinguishes effectiveness between the American and British. According to the traditional British contract law, the contract in violation of laws and regulations or violation of public policy is different, but America has no longer kept this distinction. Both of them are unenforceable.The third part is about the type of public policy in American Contract law. Because of the ambiguity of the concept of public policy and the difficulty to apply, the classification based on the domestic case will ease the application in judicial practice. The author summarizes achievements of scholars in the United States in the phase of the Restatement (First) of contract and the Restatement (Second) of contract, and analyses some state and federal cases which involved in violation of public policy.The fourth part is about the practice of Public order and Good custom in Chinese contract law. The research of this principle in China started late and there is no rules on how to apply this principle,such as the steps and standards. American law classification method of public policy is helpful. The author downloaded some related precedents from Peking University law system and collected some data for statistical analysis. Combing with the American experience, It is more easy for us to find out the issues existing in the judicial practice of this field as well as complete our own classification.
Keywords/Search Tags:public policy, classification, Public order and, Good custom
PDF Full Text Request
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