On The Understanding And Application Of "Mandatory Provisions"

The unification of the criterion for the judicial confirmation of the validity of a contract in violation of compulsory provisions has always been a difficult problem to be solved in judicial practice.As far as the relevant judicial interpretation is concerned,there are the following obstacles in the judicial practice: the insufficient basis for the distinction between "effectiveness" and "management";The interpretation of "enforceable mandatory provisions" is based on the understanding of "public interest";It is difficult to identify and interpret the "public interest" that conflicts with the contractual interest.These obstacles cause confusion in the determination of contract validity and further lead to the confused application of the mandatory provisions in article 52,paragraph 5,of the contract law and the "public interest" provisions or principles of public order and good custom in paragraph 4 of this article.The practice of "dichotomy of effectiveness" puts forward higher requirements on the professional ability of judicial personnel,and still cannot get stable judgment.Objectively,it reduces the guidance of mandatory provisions on the contracting behavior of market subjects,and improperly increases the contracting risks and costs of market subjects.Through the reflection on the logic of the application of mandatory provisions,it is found that the mandatory provisions have a dual institutional position: first,to maintain the legal order established by the department law outside the civil field,which is mainly public law order;The second is to protect the freedom of contracts.Under the condition of the contract in violation of mandatory rules,the literary position have direct conflict,if not to "efficient" "invalid" qualitative attributes to determine contract,do apply the principle of proportion of coordinating the interests of the public and private space,because the quantifiable benefits can be handled according to the proportion,but the contract is valid or invalid qualitative for absolute persistence and a position to completely deny the other party position,when the proportion principle in the nature of the contract is applicable room,illegal contracts are effective contradiction with harmonic proportion principle.It should be recognized that there are different legal value standpoints between the handling norms of invalid contracts and the norms for the determination of invalid contracts: the handling norms of invalid contracts take the balance of the parties' private interests as the main consideration,and the handling measures include the restoration of the state of civil interests and the assumption of the liability fordamages;The criterion of invalidation of contract takes "public welfare first" and "superiority of public law" as the main considerations,which are essentially different from the former.Therefore,there may be a "valid" disposal of invalid contracts.Contract invalid,therefore,is not the same as of the invalid contract accord for the adjustment of the interests between the parties is invalid,from civil judicial trial and judicial passivity of execution,the contract shall be invalid as more means that the judicial power of invalid contract illegal content is not enforced by the support and the safeguard,but invalid purpose and how it affects the interests of the parties of the contract,mainly depend on the type of invalid contract and the actual situation of invalid contract by the parties.Therefore,the civil law significance of determining the invalidity of the contract in violation of mandatory provisions is more about the state's unsupportive attitude towards the illegal contract,and it is difficult to ban the contracting act in violation of mandatory provisions by the passive civil justice system.We should face up to the role of mandatory provisions as the civil system means of adjusting the order of economic activities,and return to the true character of civil justice.To adjust the contract between the parties who violate the mandatory provisions function of what rights and obligations relations has mainly solved by the processing of invalid contract specification,mandatory clause should be position on illegal contract effectiveness determination and bright,in violation of mandatory provisions in principle is judged to be invalid,illegal purpose part of the contract if the violation of the mandatory provisions of the protection for the third person,the collective and the interests of the state due to factors such as age culture background of change are indicative only,and have even and the spirit of the age in which,due to the lag of legislation has not been modified,and the other contract is invalid at this time will seriously unreasonable harm the rights and interests of the parties to a contract,It should be allowed to exclude the application of mandatory provisions through the application of the basic principles of civil law to make the contract valid.In this way,we should put an end to the disunity of the legal system in the market economy due to the excessive institutional functions of the mandatory provisions.