Discussion On The Application Of Mandatory Provisions In The Contract Law

When determining the validity of a contract according to article 52,paragraph 5 of the Contract Law,the answer given by Judicial interpretation 2 of contract law is "Effectiveness compulsory provisions" for the question of what is the "Compulsory provisions".The concept corresponding to it is “Management mandatory provisions”.This has improved the problem that a large number of contracts were found to be invalid in the past and promoted the transaction.But it is absolutely divided into two ways,which has caused a series of problems in judicial practice.Relatively inadequate theoretical research has made Chinese scholars fail to realize that the mandatory provisions here refer specifically to the mandatory provisions of public law,and the mandatory provisions of private law,which originally did not need to be introduced in Article 52,Item 5,of the Contract Law,are also applied in the dichotomy pattern.Legislation absolutizes the dichotomy of mandatory provisions,which causes many confusions in judging the types of mandatory provisions in local courts.The application of mandatory provisions in judicial machinery is not conducive to the correct determination of the validity of the contract,but also undermines the rigorousness of the law.Therefore,the dichotomy of mandatory provisions should be abandoned and the mandatory provisions in private law should be excluded from article 52,paragraph 5,of the Contract Law.When applying a mandatory provision of public law to determine the validity of a contract,we should fully explore the content of the regulation to be regulated,fully consider the case situations beyond the regulation content of the provision,and realize the substantive application of the mandatory provisions in order to correctly determine the validity of the contract.