Understanding And Application Of Mandatory Provisions

In China,Article 52(5)of Contract Law is a core clause of breaching mandatory provisions lead to a contract void.At the same time,it relates the interference of public power for private autonomy.This clause acts as a connecting bridge between the public and private law.Through searching and analyzing lots of cases,we sorted out mass of data to the conclusion,including the final court decision,specific issues,the relevant laws and mandatory provisions,and so on.Through the analysis of these data,we can find that different judges have different views on understanding and applying that clause in judicial practice.The differences behave as mechanical understanding of the scope of the law in Article 52(5).To some extent,the classification of mandatory provisions is meaningless.In addition,this provision was confused with Article 52(4)in Contract Law(violate the public interest)by some people.Extending to the field of research,this clause also led to a series of thinking.Firstly,in order to implement the principle of contract law,such as,encourage trade,contract freedom.The scope of "law" should be limited in the field of "the laws and administrative regulations".But with the deepening of critical analysis,in the judicial practice the restrictions of law increasingly exposed its shortcomings.So we believe that it should not be seen as complete list,local regulations and administrative rules can be taken into account in certain conditions.But its application should be more rigorous,and should be combined with the specific circumstances.Secondly,on the problem of understanding "mandatory provisions",Mainland civil law scholars focus on classifying all the compulsory provisions.But it caused a big embarrassment in the judicial practice that is the existing law and the distinguish method couldn't give the judge a clear direction.At the same time,it also reflects that the classification of mandatory provisions cannot solve everything.So we should find a new way in the aspect of legal interpretation.It's very important to use the basic interpretation method to make up for the lack of classification.Literal interpretation and objective explanation are effective methods.Finally,in judicial practice there have been some cross cases that not only violate mandatory provisions but also harm public interests.Injuring the public interests often be used as a supplementary tools to judge contract.And the connotation of public interests has expanded increasingly.In our view,the relationship between Article 52(5)and Article 52(4)is General and special laws.The 5th is the embodiment of the 4th and it should receive priority application.Returning to the basic theory of contract law,reviewing the basic concepts in contract law,we should use mandatory provisions to judge the validity of contract.Article 52(5)of Contract Law intervene in private autonomy.Involving public law and private law,relating to interference with the freedom of contract.Therefore,the judge should be given discretion.It's necessary for judge to use some tools rightly,such as,interest measurement,objective analysis to ensure the rationality and legitimacy of value complement.In the process,judges should consciously follow the principle of proportionality.Aiming to realize the value of State power and respect for private autonomy in maximum extent.