Research On The Effectiveness Of Mandatory Provisions

In the market economy in the course of development,legal system acts as an essential role for distributing social resources,especially in some provisions of the Contract Law with important function。Cognizance of the validity of contract,shall directly affect the effect of trading activity of the parties thereto and thereby affect the transaction order.Contract,guarantees the efficiency and safety of social economy,but only under the circumstance that it is valid.Thus,analyses on validity of contracts occupy a prominent position in contract law theory.Section 52(e)of the PRC Contract Law provides that the contract "violating mandatory provisions of laws and administrative regulations" is invalid.This provision has restricted and reduced the freedom of the rational man in pursuing his own interests through his conscious will,moreover,this provision has also led to serious deviation from legislative intent injudicial practices.Interpretations The Supreme People’s Court of Certain Issues concerning The Application of The Contract Law of The PRC(I)further defines the aforementioned "mandatory provisions" as "effectiveness of the mandatory requirements".This provision not only reduces the limit of Section 52(e)of the PRC Contract Law,but also brings new questions and problems to the judicial practice.However,the relevant laws and regulations divides effectiveness mandatory provisions and management mandatory provisions,do not explicitly stipulate whether a legal provision is effectiveness mandatory rules or management mandatory rules,sparked controversy with identify the validity of the contract in practice.In order to solve the disputes in practice,it is necessary to do further legal research on effectiveness mandatory requirements.The first part,based on research and analysis on mandatory provisions and discussion of the meaning and understanding of the upper stage concept of validity of the mandatory provisions,discusses effectiveness of the mandatory requirements.This part includes analysis on the meaning and distinction standards of mandatory provisions,as well as the impact of violations of mandatory provisions on contract validity.The second part,elaborate over the practice that the law of our country restrictedly explains mandatory provisions as effective compulsory regulation.Through the analysis of the criteria to distinguish between effect mandatory provision and management mandatory provision,it is found that the standard operation is not strong,and it also needs to put forward practical and feasible methods to identify the effectiveness of mandatory provisions in practice.The third part,by comparing three different mainstream methods to discern and apply effectiveness of mandatory provisions,propose a personal solution to this problem and its application with combining theory and practice.The fourth part,on the basis of aforementioned legal analysis,the author wishes may come up with valuable opinions on this issue.