Identification Of Effective Mandatory Norms And Improvements

In theory,research on the identification of the effective mandatory norms helps to better play the guiding role of the law in the implementation of civil legal acts by citizens,helps to clarify the validity of contracts,and makes people more clear about what forms The essential civil legal acts are effective,and what kind of civil legal acts will not lead to invalidity in case of violation of the law.In practice,through the search and analysis of a large number of relevant judgment documents,it can be seen that there are notable differences in the recognition and determination of different norms as to whether different norms are effective or administrative mandatory norms by the people's courts at all levels and at all levels.Such as recognizes Article 3 of the <Mineral Resources Law of the People's Republic of China>(here in after referred to as the “Mineral Resources Law”).The Qinghai High Court recognized it as a effective mandatory specification.There are as many as four types of ways for the people's courts to identify the mandatory mandatory regulations and the mandatory administrative regulations,and there are ten different identification paths in these four categories.This has brought great uncertainty to the practical operation,and has also brought considerable uncertainty to the implementation of relevant laws.Through a typological analysis of 211 judgments,the author summarizes the four common recognition methods commonly used by people's courts in judgment documents,namely,the way of interpretation of meaning,the way of interpretation of purpose,and the interests protected by norms.Standards,and without any interpretation,directly identify a specification as a mandatory or administratively mandatory specification.The main point of this article is that when identifying the effective mandatory specifications,we must first use the interpretation of the text,strictly respect the meaning of the legal text to determine whether the mandatory regulations violated are effective,and thus determine the The behavior is invalid or effective,which is precisely the meaning of the exception that the norm stated in Article 153 of the "General Principles of the Civil Law ofthe People's Republic of China"(hereinafter referred to as the "General Regulations of the Civil Law")does not result in invalidation of civil conduct.When it is impossible to draw a conclusion through the text,it is necessary for the applicator to use the method of purpose interpretation to judge,explore the purpose of the law to maximize the requirements of the law.However,in most cases,there is no way to identify the mandatory mandatory specifications through the interpretation of the meaning of the text or through the interpretation of the purpose.At this time,these specifications need to be combined with the specific circumstances of the case to identify.First,The people's court needs to judge the types of contract effects affected by the mandatory norms,and comprehensively judge the impact of these types on the interests of various parties,and then judge whether or not the illegal civil legal action should be invalidated.Second,when the type of case in the first point cannot cover a new type of case or the judicial understanding of the type changes over time,the judge needs to use discretion to measure the interests of the case.