Study On Contract Effect Violating The Compulsory Provisions

It's generally considered that the benign development of market economy requires the laws to exert their compulsory roles,therefore,the contract must not be invalid as long as violating the compulsory provisions;as for legislation,from economic contract law to revision of economic contract law and the development of new contract law,China could prevent the flooding of invalid contracts from the legislation perspective concerning the restriction of norm status;as for theoretical research,the civil law academic circles have realized that the status restriction from new contract law still have the aspect of not adapting to the social development;in juridical practices,the Supreme People's Court is also attempting to find out the methods of solving problems through some judicial interpretations.In a word,there are more and more people coming to realize even if the contract has violated the “compulsory provisions from laws and administrative regulations”,this contract could not be considered as void in whole.Because currently China is still in an exploring stage on the issue of contract effect violating compulsory provisions,there are many academic viewpoints from scholars,there are not clear and specific judging standards in laws,facing some decision dilemma.This paper is just referring to the relevant legislation experiences and research achievements at home and abroad on this basis,in combination with the existing laws,civil law theories and basic national conditions of China,and continue to further study the contract effect issue violating the compulsory provisions.Chapter One introduces the research background,theories and significances of practical research of contract effect violating compulsory provisions from a macroscopic perspective.Chapter Two discusses in details about the general theories related to compulsory provisions and identifying the contract effect.How to define the compulsory provisions is a basic theoretical issue in the research perspective of the paper.This Chapter starts from the basic terms of compulsory provisions,and to understand and define from its connotations and extensions.Starting from the relation between compulsory provisions and contract effect,this Chapter classifies the compulsory provisions and remunerates the effect status of compulsory provisions violating contract.Chapter Three introduces two major law systems and the relevant legislations of China.The mainland law systems are mainly embodied in Article 134 from “German Civil Code” and Article 90 from “Japanese Civil Code”.When the contract is authenticated to be against compulsory provisions by British and American laws,there will be two consequences: no compulsory and no interference.Chapter Four analyzes in details the three decision methods for contract effect violating compulsory provisions: interest balancing method,categorization research method and normative analysis method.Chapter Five summarizes the problems of contract violating compulsory provisions encountered in practices,and conducts some reflections: clearly defining that the judging significance of Article 52.5 from “The Contract Law” is the prerequisite;law interpretations are critical to judge the compulsory provisions;finding out the purpose of norms,and make no distinguishing on effect and management;considering the social public interest,and breaking through the status restrictions.