Research On The Influence Of Contact Violate Administrative Mandatory Rules

With the development of market economy and the transform of state's role and function,a large number of mandatory rules which stand for public will and power were established.They access the field of private laws constantly.It attains the goal of state intervention but impact on the autonomy of private laws.For preventing the excessive incursion from power to private field,legislation ought to define the limit between public law and private law.Mandatory rules were divided into two parts in our current legal system: “Functional mandatory rules” and “Administrative mandatory rules”.The contact which violates the functional mandatory rules is invalid,the efficacy of the contact which violates the administrative mandatory rules should be judged on particular situation.But legislation hadn't offer a standard for distinguishing.Efficacy of the contact which violates the administrative mandatory rules is not identified.Contract is the bridge of market communication,in order to insure the maximal action of contract reflect on the range that conform to the requirement of law and public interests.Define the efficacy of the contact which violates the administrative mandatory rules should be an important work which cannot be neglected.Aim at above issue,this thesis is divided into four parts:The chapter one has illustrated the concept of mandatory rules and discussed the reason of the generation of mandatory rules based on the social background and contract basis and analyzed the type of mandatory rules and the relationship between contract efficacy and mandatory rules.The chapter two has analyzed the academic research and the experience of legislation and judicature of German,Japan and Taiwan.German uses the German civil law No.134 to define the efficacy of the contract which violated mandatory rules.Japan has made a research on mandatory rules from the vision of public law and private law.Taiwan has distinguished functional rules and banning rules based on Japan civil law.Although there are differences between these countries (regions)' legislation.But in the application of rules,these three countries (regions) are focus on the goal of rules and judge the efficacy of the contract which violated mandatory rules based on profits' balancing.The chapter three aim at offering a way for judging the efficacy of contract which violated administrative rules.When we start to judge the efficacy of the contract which violated mandatory rules,literal analysis method is not enough.We should analyzed the goal of rules and the profit which is protected,and use the purposive approach and profits' balancing to judge the efficacy of contract.The third chapter has divide administrative rules in to three types: restriction on qualifications of civil subject,restriction on contract's form,requirement on the range of client.This chapter also made a research on the influence of the efficacy of the contract which violated different types of administrative rules.