The Application Of Mandatory Standard In Civil Judgement ——The Docking Research Of Standard Law And Civil Law

Although the mandatory standard doesn’t have the appearance of legal norm,it has the essence of legal norm.Under ordinary circumstances,the mandatory standard should be considered as a legal norm.The court can apply it in the civil judgment,but in some special circumstances the court should not apply it because the mandatory standard doesn’t have the appearance of legal norm.When the subject matter agreed by the clients does not meet the mandatory standard,because the mandatory standard lacks the appearance of legal norm,it generally can’t be used as a legal basic to confirm the invalidity of a contract.The court can’t confirm the invalidity of a contract by Article 25 of Standardization Law.Mandatory standard may include social public interests.If the subject matter of a contract does not comply with the mandatory standard,the contract has the possibility of harming social and public interests.From the legal principles,the methods of“advantage of personal interest” and “appropriate proportion” can be used to judge whether the contract harms social and public interests or not.When the subject matter agreed by the clients isn’t categorical,mandatory standard should not be used as the primary criterion to identify the quality requirement of the subject matter.Because it will invade the private law autonomy of the clients and also violate the principle of fairness.In the case of tort liability,the court can use primary-face proof to prove that the party who violated the mandatory standard is at fault.However,such a proof needs to meet a condition that the victim and the injured right are within the scope that the mandatory standard aims to protect.Therefore,it is necessary to explain the scope of protection of the mandatory standard.In the case of product liability,if the producer causes a defect in the product in order to comply with the mandatory standard,the producer can use this as a defense against tort liability.In the case of food safety punitive damage,the court should directly apply the formal standard.If the food doesn’t meet the formal standard,the punitive damage will be established.The court should also scrutiny the safety of food in substance.If the food is unsafe in substance,the punitive damage will also be established.In this process,the court can refer to the mandatory standard and apply it indirectly.