Research On Standards Of Confirming Effective Mandatory Regulations

With the continuous development of the market economy,with the popularization and promotion of the rule of law concept,the legal consciousness of the people are also gradually improving.At the beginning of the contract,from formulation to produce legal effect and performance of the finished,its mission has been completed.The invalid contract system is an important part of the Contract Law,five kinds of situations has been stipulated in the article 52 of the Contract Law,the debate still exist in the situation five.The Supreme People's Court has introduced a series of legal norms to refine the item 5 of article 52 in the Contract Law,the purpose is solving the disputes in the practice of this situation,and to reduce the work burden of judges.However,due to the limited number of articles and the length of the content,in fact,it's still unable to determine the effectiveness of the mandatory standards from the legislative level.And the Instructions of Civil and Commercial Contract Dispute Cases in Article 15 referred to the standards of distinction feasibility between the effective mandatory regulations and management constraint regulations are still in the discussion stage.Therefore,the purpose of this thesis is to study and analyze the advanced theories of other countries and regions from the perspective of academic theory,and draw lessons from foreign experience extensively,and put forward some standards of effective mandatory regulations to deal with the increasing number of invalid contract cases.By means of comparative,normative and case analysis approach,the author discusses the standards of effective mandatory regulations,starting with the basic problems of the legal definition,classification and legislative evolution of the effective mandatory regulations,and demonstrating the theoretical basis and necessity of the standards,in order to put forward some feasible proposals to improve the invalid contract legal system in our country.The thesis is divided into four parts besides the introduction and conclusion.In the first part,the author introduces the basic theory of the effective mandatory regulations.In order to make the logic of this part more clear,through the type of division of the civil law norms covered by the basic contents to be presented,mainly discussed the division and standards of civil law norms,which leads to the core of the study object.The effective mandatory regulations refers to mandatory provisions that through the private law to give the litigants some sanctions in the effectiveness results of the law,due to the private law behaviors violate relevant mandatory norms,to influence the effectiveness of the contract entered into by the litigants,and influencing the ownership of property rights and interests.In the second part,the author discusses the research process of effective mandatory regulations in Continental Legal System countries and regions including Germany,Japan and Taiwan,and analyses their theoretical basis,research dynamics,application in practice and the actual effect feedback.There are following characteristics about the study of the effectiveness specification in the foreign legal circles.The research is thorough and meticulous and paying attention to the relationship between the contract law and the civil legal actions;There are similarities in their solutions,especially tending to explain by purpose explanation and classification summary;Different national conditions and institutional differences,which resulting us in adhering to the method of seeking truth from facts during the process of learning and reference.In the third part,through discussing the theoretical research and practical analysis of the standards for the effective mandatory regulations in China,our country has made remarkable achievements in the construction of the legal system,but there are still a lot to be improved in many aspects as follows.Firstly,it's failed to pay full attention to the basis and function in the item 5 of article 52 in the Contract Law,the relationship between general terms and other specific mandatory provisions is not clearly indicated;Secondly,the method with interpretation of the purposes about mandatory regulations isn't deep enough,especially with the detailed recognized standards.Thirdly,judicial officers focus on the practice instead of theory including treating theoretical thinking negatively and using laws mechanically;It needs to be refined about the standards of effective mandatory regulations.In the last part,the author puts forward suggestions on how to improve identification standards of confirming efficacy constraint regulations.Firstly,the concept should be classified with defining provision of law as the foundation.Secondly,by means of the provisions of the law to analyze their internal relations,and exploring legislative intent by purpose explanation.Thirdly,the public and individual interests should be considered in order to achieving justice.Lastly,the normative attributes will be determined with the standards that whether the contract is fulfilled or not.So far the identification standards of efficacy constraint regulations will be further enhanced and improved through the above recommendations.