The Identification Of Effect Mandatory Provisions

With the further development of China's socialist market economy,our country's contract invalid is faced with double challenges of theory and practice.Among them,clause 5 in article 52 of the contract law mandatory provisions of contract invalid is a key player in our country.Chinese scholars began to discuss more about the mandatory theory,but there are still many problems in the application of the law.It is a practical problem to be solved to know how to identify the effect mandatory provisions in the specific judicial trial.These questions are put forward,which is not a small test of China's mandatory theory,and to a large extent,it is also a test of the judge's courage and wisdom.This paper takes the case as the starting point,mainly from the three aspects to explain,mainly about the dilemma of the identification of the effect mandatory provisions,draw on the experience of the comparative law and the identification criteria.The text is divided into five chapters,the specific contents are as follows:First of all,taking the case in the Chinese judicial document network as a starting point,puts forward the problem of the identification of the effect mandatory provisions in the judicial practice.Secondly,this paper expounds the different understanding of the effect mandatory provisions and analyzes the differences.Because of its own complexity,in theory,the scholars have their own words,there is no uniform standard.Respectively,in the mandatory provisions of the title,scope,effectiveness classification,evaluation criteria and other aspects of the differences.In legislation,it is more abstract,and there is no specific identification criteria and methods.Then,from the perspective of comparative law,this paper expounds the relevant provisions of different countries on the effectiveness of mandatory provisions.It mainly introduces the provisions of the Roman law,the German law,the Japanese law and the laws of the China's Taiwan region,and draws lessons from the application of the law.And then,drawing on the legislative experience in foreign law and combined with typical cases in the judicial practice of our country,and summarize the general rules of mandatory provisions to solve the problem of identification,and try to put forward some cognizance of the provisions of the standard.In the standard,the main consideration is the rule of interpretation.However,when there is a conflict in the law or there is no relevant provision,it is necessary to consider the use of value measurement methods to determine which interests need to be protected.In the case of the above provisions are difficult to identify the effectiveness of mandatory provisions,case classification is the type of specific things.It is not only a recognized standard,but also has the role of testing the first two standards.Such a recognized standard,the use of law and the specific case of a combination of methods,making it more reasonable.The specific identification is this: First,the rule of law,legal interpretation is a necessary condition for the application of the law.According to the order of time,it is necessary to take into account the interpretation of the meaning,interpretation of the system and the purpose of interpretation.Among them,the interpretation of the text to narrow the scope of the provisions of the system to clarify the definition of the legal system in the terms of the true meaning of the purpose of interpretation of the provisions of the purpose of seeking to explore its purpose.Second,the value judgment method,carries on the value measure,seeks the biggest benefit which must protect in each kind of different interest.It should be noted that in the principle of balance,in order to establish the concept of the protection of private law,to encourage the transaction is in the judgment should have the point of view,followed by the need to consider the meaning of autonomy,and finally should be chosen is the public interest.Third,the type of case facts,starting from the specific case itself,classify the specific circumstances of the case,the adjustment object is divided into standard qualification type,subject type,type approval,the classification is not only the order of the corresponding case.Then,and the corresponding laws and regulations docking,in order to make the right judgment.Finally,the article returns to the example,analyzes how to apply the theory of the judge in the case of the trial,and analyzes the judge's criteria for the case,and analyzes the combination of standards,hoping to provide some reference for the judicial application of the theory.