| As a product of "private autonomy" based on liberalism,contract is the most important mechanism arrangement in today’s social and economic transactions.The legal system of contract is one of the basic legal systems which provide legal guarantee for market economy and plays an irreplaceable basic role.China has always made clear provisions on the level of legal norms that can affect the effectiveness of the contract.However,in recent years,it is difficult for China’s judicature to fully follow this legal logic when facing the complicated situation in the field of contracts.In the field of Finance and commerce,there are cases in which the legal interpretation is used to make the contract in violation of regulatory rules invalid by referring to Article 52(4)of the contract law.In November 2019,the Supreme People’s Court issued the Summary of the national civil and commercial trial Conference,which clearly affirmed this judgment orientation under the premise of restrictions.With the implementation of the civil code and the abolition of the contract law,public order and good customs have become a new standard for determining the validity of civil legal acts,including contracts.Therefore,this paper focuses on the field of contract legal system,and discusses the possibility of financial regulatory rules affecting the validity of contracts under the current legal system framework.On the basis of affirming the rationality of the introduction of public order and good customs as a reference clause into financial regulatory rules to determine the validity of contracts,this paper clarifies the relationship between public order and good customs and social public interests,social morality and customary law,makes a typification complement to public order and good customs in the financial field,and puts forward the logic and standard of its judicial application.The full text is divided into three parts: introduction,text and conclusion.The introduction explains the background of the topic and the problems,literature review,research methods,innovation and significance,etc.The first chapter examines the current situation of the effect of financial regulation on the validity of contract from the perspective of legislation and judicature.The current situation of legislation includes contract legal system and financial supervision legal system;The review of the current judicial situation focuses on the review and reflection of two different judicial judgment ideas on the effectiveness of contracts violating financial regulatory rules.Through the analysis of the current situation,we can find out the conflict between legislation and judicature in the field of financial supervision in China.The second chapter analyzes the reasons why financial regulations affect the validity of contracts.This chapter explains the importance and particularity of financial business,the necessity of financial supervision,the particularity of financial supervision rules and the characteristics of China’s financial justice to demonstrate the rationality of the influence of financial supervision rules on the validity of contracts in judicial practice.The third chapter focuses on the theoretical basis of financial regulatory rules affecting the effectiveness of contracts.The current theory can not properly solve the contradiction between administration and justice in the field of financial supervision,and is divorced from the development of financial market,so it is necessary to reconstruct the theoretical framework.By analyzing the boundary between the regulation of public law and the autonomy of private law,as well as the criteria for judging the invalidity of legal acts,I think that public order and good customs are reasonable as a judicial channel for financial regulatory rules to affect the effectiveness of contracts.However,the connotation of public order and good custom is abstract,which has theoretical and practical obstacles in judicial application.Therefore,the fourth chapter expounds the typification thinking of public order and good customs in the financial field,and puts forward the logic and standard of its judicial application,in order to ensure the correct application of the spirit of the civil code and the Summary of the national civil and commercial trial Conference in judicial practice.The conclusion concludes that under the current legal framework of our country,financial supervision regulations still can not be the direct basis to determine the validity of the contract.But the practice seems to indicate that it is biased to absolutely exclude the judicial applicability of financial regulatory rules from another perspective.Therefore,compared with dealing with the changing market and its institutional needs through legislation,it is more rational and realistic for financial justice to bypass financial regulatory regulations by virtue of public order and good customs and introduce them into the judicial system under the premise of certain normative structure.The special status of public order and good custom in the civil code makes it have both the legal nature of value declaration and judicial norms.And public order and good custom define the boundary of autonomy of private law with substantive justice.As the target of financial risk,financial regulation is the refinement of laws,administrative regulations and the decisions and orders of the State Council in the financial field,which has the value orientation of social public interests and the role of maintaining public order and good customs.Therefore,it is reasonable,sufficient and necessary for financial supervision regulations to influence the validity of contracts by virtue of Article 153 of the civil code concerning the non violation of public order and good customs in civil legal acts. |
