Distinction Between Effectiveness Mandatory Rules And Management Mandatory Rules

According to article 52(5) of Contract Law, if a contract violates the mandatory rules of laws and administrative regulations, the contract should be null and void. And the Contract Law Interpretation(2009) further narrowed the scope of mandatory rules for the effectiveness mandatory rules, in this way, it implements the further refinement of the mandatory rules. In a certain sense, it corrects some previous misconceptions of some law’s nature, providing the correct direction for the validity of the contract when it violates mandatory rules. Besides, it also limits the range of invalid contracts when they violate the mandatory rules, in order to protect the autonomy of civil transaction parties as much as possible. However, the relevant laws and regulations do not explicitly stipulate whether a legal provision is effectiveness mandatory rules or management mandatory rules, which leads to the judicial personnel judge the legal provision according to their own legal awareness. In addition to the uneven legal level of judges, with the given case, different judges may make different judgments.Therefore, this article includes five parts to explain how to distinct whether a mandatory rule is effectiveness mandatory rules or management mandatory rules. The first part introduces a judicial case, in this way, it reveals the current judicial practice on the distinction between the effectiveness mandatory rules and management mandatory rules. In the second part, it introduces the legislation evolution of mandatory rules on the Contract Law, the provisions of mandatory rules develop from nothing, from simple to detailed, embodying the progress of the legislative idea. The third part introduces the connotation of mandatory provisions first, and then it discusses the meaning of effectiveness mandatory rules and management mandatory rules and the significance of the distinction between the two kinds of mandatory rules. In the fourth part, it focuses on the different understandings of the differences between the two kinds of mandatory rules. The fifth part is the main content of the article, it introduces the specific distinction between the two mandatory provisions, first of all, it seeks the legislative intents of mandatory rules by the method of interpretation, determine the nature of legal terms. Next, through the method of type analysis, the article lists four typical types of mandatory rules, including autonomous mandatory rules, policy objective types of mandatory rules, public order and good custom of mandatory rules and protecting the interests of special groups of mandatory rules, and analyzes their legal nature.