On Effect Of Contract Violating Mandatory Provisions

Chapter One penetrates into the general theory of the validity of a contract violating compulsory provisions,Points out what is mandatory provisions.In this paper, a comprehensive analysis of the three angles of mandatory provisions are carried out,for example, the general principles of law, the essential features of compulsoryprovisionsandidentificationcriteriafor mandatory requireents. Specifically speaking, The core of mandatory provision requests that any party’s intention should not exclude it. Identification of mandatory provisions can not only rely on form feature, but also analyze the compulsory mandatory provisions of the object, content, way and the consequence of the basic characteristics, as well as mandatory provisions of the purpose and legitimacy for the substantive characteristics were investigated. It is very accurate definition provisions.In second chapter, the author has settled and analyzed evolution of legislation and judicial practice of effect of contract violating mandatory provisions in China.lt points out that in the process of legislation evolution, the understanding and development of the system of the validity of a contract violating compulsory provisions.Specifically speaking,The purpose of the contract law is to make people able to complete their own private purpose in the legal space by means of private agreement, thereby encouraging the transaction.From the General Principles of the Civil Law began to avoid national policy to Contract Law appears for the first time in the mandatory provisions, and then to limit the legal order, and the mandatory provisions limit shrink for the effective mandatory provision,this a series of changes, indicating that when the legislation were enacted law,he greatly respect the will of the individual, and also reflects our country under the market economic system is gradually reduce administrative intervention, and have come to realize the important idea of autonomy of private law.Accordingly, the judiciary in the treatment of the effect of contract violating mandatory provisions, attitudes have changed, by the previous public power over interference, "violation = null" identification method has now been transformed into try to expand the scope of validity of the contract.The third part is to undertake the development of the system of contract effect in violation of mandatory provisions above, in practice, to give the judicial referee more decision basis, has certain guiding value.However, a large number of new problems have to be further studied.Mandatory provisions limit people’s ideas in a country and society can tolerate, and not in order to meet the needs of public power, but by national laws to protect the public interest and social good customs. Legislation affirmed the mandatory provisions of this characteristic, a certain degree of restriction on freedom of private law contract, and how to grasp the degree of is the current law about the effect of contract violating mandatory provisions of reason.In this paper, it comes down to three aspects 1.Mandatory provisions of the general provisions of the functional impairment.2.Mandatory provisions in the legal position of a narrow range.3.The effective mandatory provision identified difficulties, the operation is inconvenient.The fourth part discusses the validity of a contract violating compulsory provisions to determine and improve the problem.To determine the validity of a contract violating compulsory provisions, the first is to distinguish the effective mandatory provisions and managerial mandatory provisions.In this paper, we adhere to the "Regulations" and "comprehensive legal interests" to complement each other, objective and specific classification.However, the classification in solving problems in judicial practice is still limited, and at this time to through comprehensive analysis to develop a violation of mandatory provisions of the contract effectiveness system, strengthen the operability in the judicial practice in such cases, the system that we should do from both legislative and judicial perspective.