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On Effect Of Contract Violating Mandatory Provisions

Posted on:2015-01-20Degree:MasterType:Thesis
Country:ChinaCandidate:F X ZengFull Text:PDF
GTID:2296330431956783Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
With the development of society, a lot of problems faced by China will be highlighted, Especially at present in our country to meet the challenge of globalization, it will exacerbate these problems. It is also a great challenge to develop the rule of law in china. Our civil legislation late, many of China’s legal system does not fully comply with the development direction and speed. The economic base determines the superstructure, with China’s transition from planned economy to market economy, so that the whole society to the "contract law" of the increasingly stringent requirements."Contract law" itself will play a huge role in the tide of market economy, but to improve the law is a process, the pace of development in society so quickly, it isn’t always possible to maintain its advanced nature, so inevitably there will be some lag, in specific application will this or that problem, if not solved properly will hinder the development of the socialist society. This paper is to illustrate the existence of "contract law" in the problem and we should how to solve."Contract law" fifty-second stipulates,"in violation of mandatory provisions of the contract invalid". The law in making, whether in theory or in specific judicial practice and legal application, we discover not hard, just as the law itself, and it did not like to consider legislation at the beginning of that, different from the legislative idea, was supposed to guide people to pursue the right through its interests, but get the opposite of what one wants, this provision is reduced and limited rational freedom through self consciousness to pursue their own interests, freedom, more serious is it even become a stumbling block to the rational person in this way the pursue legitimate interests.In the judicial practice and the legislator’s original intention is not consistent. In the judicial practice of our country, we generally used the "contract law" provisions of article fifty-second, then continued promulgated the "contract law" and "law of contract interpretation of a two", range gradually reduced judgment invalid contract invalid from the beginning, in violation of the laws, administrative rules and regulations of the contract, to later explain a narrow here the law, administrative law, and then to explain two of the mandatory provisions reduced to the mandatory provisions. Although after so much effort, but the connotation of the mandatory provisions and standards is not clear, there are great differences among the theoretical circles and judicial practice circles in the specific application, there is no uniform standard in judicial practice.Professor Wang Yi in his book "the principle and research methods of civil law" at the beginning of the borrowed from Mr. Chen Bo’s statement,"Chinese academic has’ talking ’tradition, advocating and encouraging the’ my six Canons’, filled with me on the former, the ancients, foreigners prostrate oneself in worship, worship and awe of the book in the past". We have been in worship, confine their thinking, so be bold innovation, the concept of contract law on the basis of innovation, put different interpretations.
Keywords/Search Tags:Compulsory Provisions Validity of A Contract, State Mandatory, Freedomof Contract, Public Order And Good Morals
PDF Full Text Request
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