Research On The Conversion System Of Invalid Legal Acts

The conversion of inefficient juristic behavior system originated from Roman law,civil law countries generally established the system in legislation,the Anglo-American law countries also recognize the effect of conversion in practice.What is called the conversion of inefficient juristic behavior system means an invalid legal action has the entry into force of other legal action,if the parties know that the act is invalid,they are willing to carry out another legal act,so we could allow the invalid legal action be converted into another effective legal action.The core connotation is to maintain the autonomy of private law and save transaction cost.In theory,it includes legal conversion and interpretation of the conversion,but there is only legal conversion in our legislation,just like the famous saying goes,“a late promise is a new offer”.However,relevant precedents have already appeared in judicial practice,aiming to solve the problem that how does the creditor's right have the effect of the property right setting behavior violating the legal principle of real right.Besides,some local courts are not able to use the system accurately,they ignore and confuse the use of the system.If we take a look at the system of legal action in China,we will find the forms of legal action are effective,invalid,revocable,alterable and undetermined,which take legal consequences as the core and are obviously different from the provisions of the civil law system that values the meaning of the party more.In consideration of the lack of legal basis and the facts that the trial rule is not unified and the judge's thinking is narrow,we need to give legislative response and re-examine the application of the system in judicial review.Therefore,based on the reality,we need to draw on advanced legislation and judicial experience at home and abroad to build a system which conforms to our country's reality.Firstly,it could remedy an invalid legal act,perfect the theory of legal action,provide basis for judicial decision,and should be legislated as soon as possible.Secondly,legislation should pay attention to the role of the key components of the conversion system.The last point is we need to improve the situation of relative judicial adjudication from unification of the standard and broaden the thinking of the referee.In the specific discussion,this paper attempts to clarify some theoretical controversies,such as whether the property right setting behavior violating the legal principle of real right can be converted into creditor's right behavior,whether to register other's child under their own household registration can be converted into adoption,and constitutive requirements of conversion system.It is necessary to refer to the legislation and typical cases of continental law countries such as Germany and Japan,then combine them with civil code legislation and judicial practice to form practical legislative proposals and judicial suggestions.In terms of legislation,the General Provisions of Civil Law has taken effect,we could make judicial interpretation and clearly establish provisions on conversion system in the Specific Provisions of Civil Law.Speaking of judicial adjudication,we should explore and establish relevant rules in related fields to unify referee standards and broaden the thinking of the referee,then we could better safeguard the autonomy of private law.