Analysis Of The Effect Rules Of Illegal Contract

The contract that violates the current law may suffer negative evaluation on its effectiveness,which is a bit of an overestimate.The existing illegal contract effectiveness system in our country is to divide the law made by the NPC and its standing committee and administrative regulations made by the State Council into the validity norms and management norms,and the contract will be invalid when violating the mandatory norms.However through the retrieval of cases,the author finds that such a seemingly clear criterion of validity has caused great confusion in judicial practice:different connection with the given phenomenon occurs frequently,and it also leads to the rigid thinking of the judge's referee.The reason is the lack of clarity in theory.The two pattern of effective norms and management norms evolved with the changing social needs.Therefore,the theoretical defect is unavoidable if it satisfies the main purpose of encouraging transactions and limiting the impact of evaluation of public law on evaluation of private law.Through the analysis of the legislative background,concept and logic,the author thinks that the division of effective norms and compulsory norms are flawed in theory:the definition of the concept is not clear,the logic is undistributed;The judgment standard is controversial,and the existing judgment standard is only a summary of the case,and it is not the starting point of the case judgment.It is difficult to include all illegal contracts in reality.Moreover,the simple and crude classification of mandatory norms is carried out with a one-size-fit method,which ignores the rationality of legal theory and the conclusion of realistic complexity.The distinction between effective norms and managerial norms,in addition to reminding us that not all of the illegal contracts are ineffective,is at best convenient to understand,and can not be taken for granted.The author thinks that in order to limit the impact of public law on evaluation of private law,we must reflect on the relationship of evaluation between different legal fields in concept,and on this basis can a reasonable and concrete system be constructed.Through the introspection of the insufficiency of the unified theory of law order in form and the rationality of the theory of the unity of the law order in substantive,the paper concludes that the evaluation of different fields of law can reach a unified conclusion on the protection of interests.It is difficult to unify different purposes under one category by force because the various fields of law set different behavioral norms based on specific purposes,but the purpose behind the goals will reflect a certain interest demand,and the interests themselves can be quantified and compared.And the priority of the purpose is judged by the measurement of different benefits.It can achieve the unity of protection of interests.The concrete system design under this concept should naturally take the interest measurement as the core,which requires the discretion of judges from the institutional level.Secondly,we should limit the discretion of judges from the aspects of methods and considerations.In the method,the principle of proportionality is introduced to decompose the value judgment into concrete fact judgments as much as possible.To a certain extent,this provides a more unified measure for the judges' discretion and relieves the arbitrariness of discretion.And this article also enumerates the factors that the judge needs to consider in the discretion.Finally,the author adopts a method of type analysis of the effectiveness of illegal contracts,in order to more clearly determine the use of interest measurement in individual cases.