On The Invalidity Of Contract Violating Public Order And Good Customs

For the first time,the General Principles of Civil Law stipulates "public order and good customs" in our civil legislation.This practice has obvious progressive significance and clarifies the important role of public order and good customs in civil legal relations.In the case of determining the invalidity of the contract,the public order and good customs play a very important role.When the court determines that the contract is invalid based on the public order and good customs,the premise needs to judge whether the party violates the public order and good customs.In the standard of public order and good customs,the type has the convenience of application,but because the type is also lagging and incomplete,it is also necessary to combine the value supplement method and seek the standard in the case.The object of judgment in the case should be limited to legal acts.It is not appropriate to consider the subjective factors of the parties in subjective and objective factors,but the objective factors shall prevail.After the implementation of the General Principles of Civil Law,the court handled cases involving public order and good customs.The most cited articles are Articles 153 and 8 of the General Principles of Civil Law.Both belong to the relationship between rules and principles.Article 153 of the General Principles of Civil Law should be applied first in the field of civil legal acts.In the application of Article 153 of the General Principles of Civil Law,attention should be paid to the relationship between this article and Article 52 of the Contract Law.Although the General Principles of Civil Law has updated the relevant expressions of the Contract Law against public order and good customs,it has not been updated in the content.So before the Contract Law was abolished,the provisions of Article 52,paragraph 4,of the Contract Law applicable as special law are more appropriate than the provisions of Article 153,paragraph 2 of the General Principles of Civil Law.Violation of Article 153 of the General Principles of Civil Law will result in invalidation of the contract,but violation of Article 8 of the General Principles of Civil Law does not lead to the legal consequences of invalidating the contract.Article 8 of the General Principles of Civil Law should pay attention to distinguishing between multiple acts in a case,that is,distinguishing between factual acts and legal acts,and evaluating them separately under certain conditions.In the specific application,we must also guard against the phenomenon of escaping from the general provisions,and we should first exhaust the rules.Article 153,paragraphs 1 and 2 of the General Principles of the Civil Law can be used as a basis for determining the invalidity of a contract.There is a complementary relationship and a juxtaposed relationship between the violation of the public order and the violation of laws and administrative regulations.Contracts that violate the mandatory provisions of laws and administrative regulations will be invalid because of violations of public order and good customs,article 4 of the Interpretation of Contract Law(1)stipulates that the people's courts shall confirm that the contract is invalid and shall not rely on local laws and administrative regulations,but this does not mean that local regulations and administrative regulations have no reference value,if the local laws and administrative regulations are in conformity with the spirit of the superior law,the validity of the contract should be determined through public order and good customs.