Research On The Section 5 Of The Fifty-second Article Of The Contract Law

One of the core issues discussed in our civil law category is the issue of invalid contracts.What is the effect of the enforceability of the content on the legal effect of the contract? Under what circumstances does the violation of the mandatory content cause the contract to be invalid? China's Contract Law and some judicial interpretations have given a clear description of the "code of conduct",but they do not divide the contents of the prevailing norms in our country's laws,and there is no actual contract violate the results of a variety of mandatory norms to be the result of the difference.As the legal effect of the contract affects the actual legal benefits of the contract,and the social and economic operation of the situation there is an important relationship between the legislative and judicial reform are the urgent need to solve the problem,therefore,in accordance with the current legal norms on the basis of China's " " Article 52 of the provisions of paragraph 5 is the nature of the terms,and then the definition of mandatory norms and distinguish between its invalid with the contract to be re-explored,especially after the termination of the contract results,there is a very important positive role.The article was seperated into four paragraphys:The first paragraphy of the article is about semantic analysis the section 5 of Article 52 of China's Contract Law.From the basic knowledge of jurisprudence,the concept of the law is from the violation of the "laws and administrative regulations" And must be in violation of the "mandatory provisions",and further must be in violation of the mandatory provisions of the validity of the norms.The second part of the thesis is about the evolution of the legislation and the theoretical understanding of Article 52,paragraph 5,of China's Contract Law,and made some theoretical combing,pointing out that the concept of contract law and the specific system design The contract law and its judicial interpretation have been continuously improved and developed in the theory of contract law from the original "state intervention" to "private law autonomy",in the process of China's economy from a planned economy to a market economy,The task of the contract law is also from the maintenance of the transaction order to maintain the transaction security and respect for the individual meaning of the organic combination of freedom.The third part of the paper is the Contract Law Article 52,paragraph 5 of the theory and practice.From the interpretation of the meaning of the law to see the "Contract Law" Article 52,paragraph 5,how to force the normative distinction between the mandatory mandatory norms and regulatory mandatory norms;third from the purpose of interpretation and restrictions on the level of interpretation methods and other methods to define effectiveness Mandatory norms,and finally from the perspective of the protection of benefits to force the mandatory norms.In this part of the discussion,the author consciously selected a number of cases,are in the practice of controversial cases,hope that the case of these cases to re-examine.The fourth part of the paper points out the consequences of violation of Article 52(5)of the Contract Law.There are many aspects of the way in which the content of the contract violates the mandatory provisions in the theory and practice,mainly revolves around the legal consequences of the contract in violation of Article 52(5)of the Contract Law.Followed by the content of the contract in violation of Article 52 of the Contract Law,how to deal with the contract invalid rules of action and the right to apply,which is more complex,divided into two cases: First,the contract breach of contract law Article 52,paragraph 5,leads to the invalidity of the contract and should not be subject to limitation of limitation of action;and secondly,the contract has a claim for reciprocal return or damages between the parties after the declaration has been invalidated.Finally,in the context of the judicial reform,how to choose a representative case when the Supreme People's Court has introduced a guiding case system and how to establish the criteria for guiding cases in this respect.