On The Influence Of Mandatory Norm On The Validity Of Construction Project Contracts

The fifth paragraph of Article 52 of the “Contract Law” and the relevant judicial interpretations jointly constructed the system of violation of the mandatory norms invalidity in China.Although the "General provisions of the Civil Law" implemented in October 2017 essentially abandon this division,the status quo of the case trial conducted in the judicial practice with dichotomy has not been greatly improved.Investigate the legislation of the civil law countries on the mandatory norms,all countries pass the identification of the mandatory norms to the judges,who exercise discretion.However,since the judgment documents of the courts of our country are too coarse,the above recognition mechanism in our country has not well established.Therefore,under the circumstance that the law has clearly defined,the construction of the interpretation theory of civil law should be strengthened,the existing dichotomy of the trials should be removed,the reasoning part of the judgment should be strengthened,and the role of judges in the process of identifying mandatory norms affecting the effectiveness of contracts should be given full play,making the content of such mandatory norms more abundant,the elements more explicit,and the specific conditions for application more certain,so as to enhance the unity of the judiciary and the predictability of the law,and reduce the contractual disputes in the construction project field.This article is structured as follows:The first part is an overview of mandatory norms,which mainly includes the meaning,types,and institutional values of mandatory norms.The second part is the judicial application of the mandatory norms affecting the effectiveness of construction projects,mainly introduces six types.The third part is the identification of mandatory norms that affect the effectiveness of construction projects.Summarize the problems that the mandatory norms identify in judicial practice,draw lessons from the legislative experience of other countries and Taiwan,and put forward the consideration factors of the recognition of mandatory norms.The fourth part is the proposal for perfecting the mandatory system.It is mainly to strengthen the construction of the mandatory normative monism,strengthen the judges' role in identifying mandatory norms,and prudently determine the impact of mandatory norms on the effectiveness of contracts.