On The Validity Of The Contracts In Violation Of Mandatory Rules

What’s the relationship between obliged norm and validity of the contract? At present,scholars have different opinions, they didn’t form an unified opinion. Therefore, in thepractice of administration of justice, in accordance with the "Contract Law" provision ofarticle52,paragraph5,the judiciary will do the most severe sentence to the contract——determine its invalid, on the condition of insufficient theories and the unclear rules of law.But if violation of peremptory norms of contract effect will be negative or just be null?Essentially, I believe that it is a measure of the extent of the problem between freedom andstate intervention in the public right of contract. For this problem, firstly, the definition andtypes of peremptory norms of view will be very important. Then by drawing on the relevantprovisions of the extraterritorial area I will make a conclusion about the way that peremptorynorms behind the protection of specific interests are the basic way. Then use the method tomeasure interest and make comparation to these two different interests. Finally we can get themore valuable one. If the contract interests are preserved to be protected first, then the validityof the contract will necessarily be upheld; If not so, then to protect the interests of the strengthof different contractual effect will inevitably produce different effects.The first part is an introduction of the author’s purpose in writing this article. Based onthe foreign and home analysis of the research status, the author succinctly points out theadvantages and shortcomings of peremptory norm and finds out the fundamental problem isthat the insufficient study and a lack of an effective systematic theoretical system of judicialpractice so as to fail to guide effectively. In the last the author demonstrates the research ideasand methods.The second part introduces the general problems of peremptory norms. It is verycomplex to defined peremptory norms clearly. The author combs and classifies peremptorynorms by its basic features, then compares it with relevant concepts. All of those will helpdeepen our understanding of peremptory norms.The third part is the comparative method of inspection between peremptory norms andvalidity of contract. Mainly through the study of relevant laws and theories of regions orcountries which have close connection with Chinese laws, author summarizes and analyses in legislative techniques, judicial practice and theoretical research. The main purpose is to selectand complete the relationship between peremptory norms and validity of contract and theauthor considers localization of it is the feasible way.The fourth part is the core part of this paper. It studies concrete criteria and methods forbreach of contract validity of peremptory norms. The author divided it into two levels, namelythe interests of the measure and the type of analysis. Firstly, the author gives reasons for sucha standard selection, and points out that the basic method of determining the validity of thecontract is to explore the purpose and interests protected of specific peremptory norms and tocompare them with the contract interests represented by freedom of contract, which is calledthe measurable benefits. At the same time, in order to reduce the difficulty of the abstract ofjudgment, the author selects some common issues in the judicial practice and analyzes themtypically in line with range of peremptory norms.The fifth part focuses on the effectiveness of different types of breach of peremptorynorms of the contract. It points out that in order to promote economic development andmaintain freedom of parties to the transaction, a violation of a peremptory norm of validity ofthe contract does not necessarily mean the only consequence---invalidity. Various types ofperemptory norms and different severity of the violation will produce different effects on thevalidity of the contract——from invalidity till severability to its effectiveness.The sixth part provides lawful proposals of building and improving the effectiveness ofbreach of peremptory norms of contract. We can find our rough legislative technology fromour legislative changes as well as the law vague, and machinery judicial practice, that is"contrary invalid". It points out that legislative perfection is the fundamental measure, and thebalance of judicial as well as the description of judicial reasons are the key measures. Puttingthese together, one can establish our system of violation of a peremptory norm of validity ofthe contract healthy development of the market economy in China.