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Research On The Judgment Path Of Administrative Rules Affecting The Effectiveness Of Commercial Contracts

Posted on:2021-03-15Degree:MasterType:Thesis
Country:ChinaCandidate:H Y YuanFull Text:PDF
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The current legal norms in China limit the legal norms that affect the effectiveness of contracts to the mandatory provisions of the effectiveness of laws and administrative regulations.In judicial practice,there are multiple judgment paths to introduce administrative regulations into the judgment of the effectiveness of commercial contracts,and two disputes have arisen.The first point is whether administrative regulations can affect the judgment of the effectiveness of commercial contracts.The second point is that administrative regulations should How does the refereeing path affect the effectiveness of commercial contracts.First,compared with civil contracts,commercial contracts have their particularities.This particularity is mainly reflected in the three aspects of the ability of the contracting party,the innovation of the commercial contract and the special social function.Commercial contracts are more active and complex,and their flexible and changeable forms make it difficult for legislation to meet the needs of social practice.Administrative regulations are legally effective for commercial contracts.If the administrative regulations are completely isolated from the normative sources that affect the effectiveness of the contract,it may not be possible to properly regulate commercial contracts that pursue continuous innovation,resulting in unfairness and jeopardizing the order of transactions.Secondly,in the commercial field,administrative regulations are a more effective form of law.Commercial legislation,especially financial legislation,is often lagging,and administrative regulations can play a good role in this situation,regulate themarket order,the time required for its introduction is relatively short,more flexible,and a legal system can be constructed To fill legislative gaps.And when the higher-level law only makes principled provisions or the regulations are not clear,the administrative regulations can refine the provisions in time and specify the implementation methods to help the higher-level law to better achieve its regulatory purpose.Administrative regulations can provide a practical basis for the formulation of new superior laws.Administrative regulations are one of the sources of law.As the main form of regulation in the commercial field,they play a very important role.However,it should also be realized that administrative regulations affecting the effectiveness of commercial contracts should remain modest.The establishment of administrative regulations is the location and local government,which determines that it may have natural limitations such as local interests and departmental interests.The problem of contract validity is the fundamental problem of contract law.It is related to private autonomy.It is necessary to be alert to the large number of administrative rules in the field of contract validity judgment,simplify and apply..The problem solved by this article is how to try to construct a referee path to judge the effectiveness of commercial contracts under the premise of acknowledging that administrative regulations affect the effectiveness of commercial contracts.In judicial practice,there are four main ways to judge the validity of contracts that violate administrative regulations.The first referee path is not to consider the impact of administrative regulations on the effectiveness of the contract,but to restrict the violation of the contract only from the performance of the contract.The second referee path is to invalidate a contract that covers the illegal purpose in a legal form.It does not provide a feasible judgment standard,but instead leads to inconsistency in the scale of refereeing,which causes problems in judicial application.The third referee path is to determine the invalidity of the contract by virtue of the mandatory provisions that violate the authorization of laws and administrative regulations.The fourth referee path is that a contract that harms the public interest is invalid.To reconstruct the refereeing path in which administrative regulations affect the effectiveness of commercial contracts,we must first clarify the guiding principles.First,the principle of giving priority to contract autonomy and respecting order should be adhered to.Second,the principle of proportionality should be adhered to.Appropriate and proportionate judgments should be made on the effectiveness ofcommercial contracts,and cannot exceed the necessary limits.Third,adhere to the principle of equity.Consider the measurement of interests on specific occasions and focus on the realization of individual justice.On the basis of the implementation of the three guiding principles,the administrative rules that influence the effectiveness of commercial contracts are reconstructed.The refereeing path adopting the dichotomy is divided into cases where administrative regulations are authorized by specific provisions of the higher-level law,and cases where administrative regulations involve public order and good customs.In the case where the higher-level law has clear provisions authorizing interpretation,it should be determined that it upholds the spirit of the higher-level law,and commercial contracts that violate the effectiveness and mandatory provisions of such administrative regulations are invalid in principle,and those that violate administrative mandatory regulations should be regulated The purpose is taken into consideration.If the content of administrative regulations involves public order and good customs,first of all,we should explore the purpose of the norms and determine whether the administrative regulations involve the maintenance of public order and good customs.It should be noted that the necessity of state control is not equal to the violation of the contract and damage to the public interest.The second step is to measure the legal benefits in each case.It should grasp the priority of contract autonomy,respect the value of order,and make appropriate and proportional judgments to the extent that it can maintain public order and good customs.Finally,the referee technology should be optimized to complete the legal justification.In general,violation of the rules will not affect the validity of the contract,so it is necessary to increase the burden of proof and reasoning of the judge in special circumstances,so as to protect private autonomy to the greatest extent.
Keywords/Search Tags:Commercial contract, contract effect, public order and good custom, judgment path
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