Emperical Study On The Effect Of The Contract Violating Mandatory Norms

With regard to the influence of mandatory norms on the effect of contract, although there are relevant legislations, problems still exist in legal practice because of numerous reasons. Through analyzing the decisions of the typical cases, this paper is going to discuss two questions:the relationship between item5 article 52 of Contract Law and the mandatory norms, and the recognition method of mandatory norms.As to the first question, this article considers that item5 article 52 of Contract Law is just the switch-over clause in the whole legal system, and it is the mandatory norms in contract cases that influence the effect of contract. This clause acts as a "pipe", which transfers the public laws’mandatory norms to private law to influence the effect of contract. Based on this analysis, this paper is going to make a brief comment on article 137 of Civil Code of the People’s Republic of China (expert proposal draft) provided by civil code team of China Law Society, and propose that this article should keep the proviso clause.Regarding to the second question, legal hermeneutics should act as the tool to explore the purpose of the norms involved and the interests the norms try to protect. Then compare such interests with the interest of contract freedom, and determine whether the realization of such interests requires the denial of contract effectiveness. If the answer is yes, such mandatory norms is "effective mandatory provisions", or otherwise. During the interests exploring process, the preciseness of legal hermeneutics is the key element to get access to the meaning of the provisions accurately. During the process of interests balancing, case law method is conducive to restrict the discretion of the judge.Respecting to the recognition method of mandatory norms, this paper provides a relatively feasible solution, and helps to improve the accuracy of the application of laws.