On The Influence Of The Principle Of Proportionality On The Validity Of Civil Legal Acts

The issue of the application of the principle of proportionality in private law is increasingly concerned by civil law scholars.As the principle of proportionality is formed and developed in public law,it is controversial to apply it to the field of civil legal acts based on private autonomy.Throughout the existing research results both at home and abroad,many discussions focus on validity of civil legal acts.The difficulties are reflected in three aspects: the nature of the principle of proportionality,the theoretical basis on which the principle of proportionality influences and the way how it influences.The solutions to these difficulties are not only related to the relationship between basic rights and civil legal acts,the balance between private autonomy and protection of human rights or public interests,but also closely linked with the legislative and interpretative theories of the validity system of civil legal acts.In order to make the discussion not empty talk,combining specific regulations and cases,the thesis demonstrates the application of the principle of proportionality in the validity of civil legal acts.In addition to the introduction and conclusion,this thesis is divided into four parts.The first part is “the theoretical controversy on the application of the principle of proportionality in the field of civil legal acts”.The purpose is to pave the way for the discussion concerning the influence of the principle of proportionality on the validity of civil legal acts.On the one hand,it briefly summarize the fundamental theory of the principle of proportionality.On the other hand,it summarizes and analyzes the existing opinions concerning the application in the civil legal acts field,there are mainly“ differentiated application theory” “full application theory”“partial application theory”and“no application theory”,whose viewpoints are related to the validity of the civil legal acts and differences stem from the different understanding of the nature of the principle of proportionality.According to the nature of the principle of proportionality as value principle is to guarantee basic rights bycontrolling public power,the “differentiated application theory” based on the basic rights theory of the constitutional value is justified.However,it has not yet reached consensus on the influence of the principle of proportionality on the validity of civil legal acts.Therefore,it needs further exploration.The second part is “the theoretical basis on which the principle of proportionality affects the validity of civil legal acts”,according to the nature of the principle of proportionality,starting from the source of legal acts validity and the influence of the basic rights on private law,this thesis seeks for(similar)state power and basic rights factor in the validity of civil legal acts to justify the "differentiated application theory" and clarifying the scope of its influence.The regulations of validity of legal acts as the validity source are the products of the legislators adjusting private autonomy,and the civil judgments based on such regulations,which should be bound by the principle of proportionality.The private will,as the validity source,is not bound by the principle of proportionality generally,influenced to some degree by mostly by the general provisions such as public order and good custom in fact.However,sub-consensual legal acts governed by social power often impose undue restrictions on the rights of the weak party,which may be affected by the principle of proportionality because of functional affinity.Therefore,the principle of proportionality can be coordinated with private autonomy,which can be used to control the state power and social power in the regulations and judgments of the validity of civil legal acts and sub-consensual legal acts to promote the realization of private autonomy.The third part is “ the way how the principle of proportionality affects the validity of civil legal acts ”,it analyzes in detail the way how the principle of proportionality affects the validity regulations of civil legal acts,the related judgments and sub-consensual legal acts,and its justification.As a part of the legal system,the validity regulations of civil legal acts should meet the requirements of the value of the Constitution.the principle of proportionality as the constitutional review standard can be used to determine whether the validity regulations of legal acts have excessive interference withprivate autonomy.In view of the current situation of the constitutional review in China,the principle of proportionality is mainly used as a test tool for the appropriateness of the system.The validity of civil legal acts is judged by weighing related basic rights interlaced among private autonomy,the principle of proportionality mainly works through constitutional interpretation.On the one hand,it can be integrated with the civil law interpretation,and on the other hand,it fits the balanced interests purpose or excessive prohibition idea contained in the legal act validity norms,As for sub-consensual legal acts,because of the narrow scope and lack of strength of the existing content control regulations,the principle of proportionality can better protect the rights of the weak as supplementary control regulations.On the one hand,it doesn't cause heavy burden on social power subject.On the other hand,its value connotation can be integrated into the principle of fairness and special content control regulations.The fourth part is “the specific application of the principle of proportionality in the validity of civil legal acts”.To ensure the practical character of “differentiated application theory”,it is necessary to demonstrate its operational method.In the legislation of the validity of civil legal acts,taking the “General Provisions of Civil Law” as an example,this thesis applies the principle of proportionality to assess the legislative mode and concrete system.The more appropriate legislative mode is only to stipulate the negative validity causes.The integration of invalid causes and the abolition of changeable validity are in line with the principle of proportionality.The system of non civil performance capacity may be contrary to the principle of proportionality.In the judgment of the validity of civil legal acts,specific demonstration of the principle of proportionality is used in the determination of the validity of the contract in violation of the mandatory regulations and public order and good custom,involving examination of excessive prohibition examination to private interests and then determining which interest should be limited properly depending on what validity form.In the field of sub-consensual legal acts,this thesisanalyzes the validity of the rights restriction clause in the civil legal act according to the logical structure of the principle of proportionality,combining with the cases of format clause in consumer contracts,the non-competition clause in labor contracts and the resolution of the general assembly of condominium owners.