Categorization Studies On The Effectiveness Of Contracts Of Breaching The Mandatory Norms

Article 153.1 of the PRC General Principles of Civil Law provides a normative basis for judging the effectiveness of legal acts breaching the mandatory laws and administrative regulations(the “Article 153.1”).Article 52.5 of the PRC Contract Law is still applicable,and the contract is the most important form of legal acts.I hereinafter refer to the above articles and related judicial interpretations as “The rules of breaching mandatory norms”.The Article 153.1 adopts a legislative mode of the retention of normative purposes,with the basic functions of referring the public law to the private law,and the authorized function.As for the relations between the mandatory norms and the validity of contracts,it is necessary to authorize the judiciary to conduct specific judgments in accordance with the specific norms,using the teleological interpretation and the proportional principles.Based on different normative logics,the scope of the Article 153.1 should not include the norms about the abilities in the mandatory norms of civil law.In addition,the dichotomy of the effectiveness and the management mandatory norms does not constitute a closed classification of mandatory provisions,also cannot afford to guide the effectiveness evaluation in practical trials,and on the contrary,it will cause the mess of effectiveness evaluation.Regarding the question of whether the illegal contract is effective,it isimpossible to figure out a once-and-for-all solution because the complexity of the interpretation of laws and the uniqueness of cases.However,the teleological interpretation as the most fundamental method,including the categorization method,can assist us to infinitely seek for the best solution.According to the reasons of breaching the mandatory norms of legal acts,the cases of which can be divided into content violations,subject violations,implementation or consequences violations and the case of environment violations,in order to explore the commonality of the impact of relevant provisions on the contracts.For example,if the content of a contract is breaching the mandatory provisions,the principle is judging it invalid.For another example,if one main body of contracts violates the law,the interests of the protected party should be considered properly.If the legal acts violate the implementation or the consequences of the provisions,the relating contracts are not necessarily judged invalid unless the implementation or consequence are the "primary purpose" of the contracts.Under the different types of illegal types,I also analyzed and summarized the most typical and common cases.Although categorization study is undistributed and not in time,this method can help us find the commonality within each type to guide case trial,in turn,in the case trial,the guidance can be vertified and modified.It's much easier than to judge only under a common rule.