Research On The Invalidity Of The Financial And Commercial Contract

With the increasing complexity of financial innovation,financial and commercial disputes based on commercial contracts have broken through the traditional civil and commercial legal framework.Contract invalidity certification standards are in a state of insufficient supply or application difficulties in legal theory and legal systems.These imperfections eventually lead to confusion in the standards of judicial decisions.On the basis of the social science law,this paper attempts to explore the invalidity of financial commercial contracts,and proposes corresponding suggestions for improving the legal norms and judgment paths.This paper is divided into five parts.The first part of the paper puts forward the concept of "financial and commercial contracts",which refers to the contracts concluded by financial and commercial entities for profit,engaged in investment and financing or financial services.They can be divided into three categories: special broad sense of financial industry,narrow sense and new type of financial and commercial contracts.Under the background of strong supervision of China's financial industry,the legal compliance and profit goal of financial and commercial contract behaviors are the intersection of private financial law and public financial law.From the perspective of interests,it can be said that the characteristics of financial and commercial contracts are mainly reflected in the recognition and pursuit of social and public interests Generally speaking,admission qualification,administrative licensing and contract purpose are the special factors that affect the validity of financial and commercial contracts.However,there is no direct causal relationship between admission qualification and validity or invalidity of contracts.Lack of preadministrative licensing will only lead to the ineffectiveness of contracts.Judges' legal thinking and commercial thinking of financial and commercial acts cannot fully agree with each other and may be wrong.The misunderstanding of the intention expression of the main body of the merchant to conclude a contract affects the basis for determining the validity of the contract.Therefore,in the determination of financial and commercial contract validity,it is very important for judges to follow the judgment idea and analyze and measure according to their experience.As far as the validity of new financial and commercial contracts is concerned,through the study of judicial cases,there are many different judicial concepts,such as promoting financial innovation,taking the mandatory provisions of laws and regulations as the standard,and so on.The third part proposes that there are two essential reasons for the current dilemma.First,in the case that China's legal doctrine dominates,the rule-based thinking of restricting the openness of the law and safeguarding the law of the same case,has produced a tendency of the legalism of the supremacy and the "methodological essentialism" to deviate too much attention to the concept of certain and specific law,while neglecting the concept of a unified and guiding law,excessively pursuing a complete system of statute law and legal interpretation.The concept is not in line with the requirements of the current open system of law,and it is likely to lead to the "concept law" that Jelling called,so that the law cannot adapt to the ever-changing financial and commercial requirements.Second,in the judicial judgment of effectiveness of financial and commercial contracts,it neglects that law is based on real social interests and experience.When some legal norms are objectively difficult to apply,judges tend to avoid subjectively or selectively apply in judgment,and rely too much on logical reasoning of syllogism.There are many judges who show great "judicial respect" for the rules and regulations of financial supervision departments and other administrative documents as well as the administrative identification results of financial supervision departments in the judgment documents,and their judgment ideas tend to be policy logic when hearing new financial and commercial cases.The fourth part points out that in order to solve the predicament mentioned above,we should introduce the method of interest measurement into validity determination of commercial contracts on the basis of perfecting the criterion of validity determination of contracts,because the method of interest measurement can effectively compensate for the shortage of legal supply in the field of financial and commercial affairs,and is conducive to balancing the pursuit of pluralistic value of financial law.At the same time,it can avoid the repetition of judgment conclusions caused by the disputes of specific factors in the validity of financial and commercial contracts.Then it further puts forward that the judge should play an active role in the core interest of the public interest of the society.The judge interprets and measures the financial order and other interests according to a specific path on the issue of the validity of the financial commercial contract,the importance of the public interest of the contract and the relevance of social public interests,and finally the results of the judgment of the validity of the contract is obtained.Of course,the measure of interest is not unconditionally taken,it can only be carried out under the premise of satisfying the following three conditions: the scope of legal and commercial jurisdiction,the case where non-legal relief cannot be achieved,and the measurement within the same legal relationship.On the legal level,the judge should not first consider the application of Article 52,paragraph 5 of the Contract Law,but should further limit and refine the fourth item of "social public interest" into "major social public interest",giving the judiciary space for further refinement and interpretation in specific areas.In the fifth part,by analyzing the two judgment documents of financial and commercial cases that the Supreme People's Court promulgated in the second half of 2018,the author compares the former interest measurement paradigm with the Supreme Court's judgment thinking,and tries to apply this reasonable paradigm to the judicial practice of guiding the validity determination of financial and commercial contracts.Then,aiming at the judicial judgment on the validity of financial and commercial contracts,it is proposed that the rules of financial supervision should be clearly defined as the reasoning basis of judges under the validity of financial and commercial contracts,rather than as the judgment basis,so as to avoid bypassing the judgment on the validity of contracts by adopting supervision rules and regulations,and pay attention to the measurement of financial policies and social public interests.Because social public interests in the financial and commercial fields are mostly embodied in the value of order,which is reflected in the country's financial policy.