The Thinking Of The Impact On The Contract Effectiveness Of The Mandatory Regulations

In China’s judicial practice field, in the trial of cases involving real estate disputes, there is a lot of controversy for contract effectiveness and specific case processing results caused by the differences of effective mandatory regulations and administrative mandatory regulations. Investigate its reason, for the moment, mainly because of the lack of effective cohesion mechanism between the different branches of law, legislation and judicial interpretation have failed to provide clear, operational process and solving methods.Based on the construction land use right transfer contract, the author attempts to analyze the mandatory regulations to the contract effectiveness and the influence of the resulting legal applicability from 《Contract law》、 《Real estate management law》、《Guarantee Law》、《Property law］ and so on different angles, through exploring the freedom principle of 《Contract law》 and the legal application of practical issues of certain restrictive and administrative regulations in 《real estate management law》、《Guarantee law》、《Property law》, to seek a kind of relatively mature methods to solve the construction land use right transfer contract dispute case contract effectiveness problem, and in the practice of the trial of the courts around China and the different judges who hold not uniform law applicable standards play a certain reference function. To perfect the system of right to use construction land transfer in our country, and between different sectors of the relevant provisions of the problem put forward suggestions and discussion.In this dissertation, the text is divided into four parts besides the introduction:The first part, the mandatory regulations influence contract effectiveness factors of legislation. Through the evolution about contract effectiveness of legislation and judicature in our country and analyzes with the outside about the impact of mandatory regulations for contract effectiveness comparison of legislative cases, this paper expounds from the violation of laws、regulations、rules and even national policy and plan will lead to the contract is invalid all, only in violation of the provisions of effective force to this day the contract is invalid, legislation has made considerable progress. But for how to differentiate between effectiveness and administrative enforcement provisions, legislative and judicial interpretation have failed to provide operational methods.The second part, the mandatory regulations of the right to use construction land transfer in China are catalogued, meanwhile, the common types of controversial disputes caused by the different understanding between effective mandatory regulations and administrative mandatory regulations because of the lack of effective connection between laws and regulations and judicial interpretations are summarized. At the same time, draw out the transfer contract effectiveness problems caused by the assigning party is not to invest or investment are not meet the legal condi t ions, and the transfer contract effectiveness problems caused by land use right transfer of already dealing with guaranty to register, both of them will be analyzed by means of case study.The third part, through the analysis of two contradictory sentences made by the supreme people’s court, puts forward the understanding of the mandatory provisions of the investment requirements of 《Real estate management law》 article 38 and 39, and the distinguish principle of real right change.The fourth part, puts forward some thoughts on law applicable to mandatory norms:1.we should strengthen to the distinction between two types of mandatory standards; 2. we should according to the legal terms preliminary differentiation of mandatory rules for category; 3. we should further judgment according to the nature of the department of mandatory norms; 4. we should distinguish the mandatory standard applicable to conform to the understanding of legislative intention and purpose; 5. the benefit measure and the cohesion between different department laws should be properly considered.