Research On The Validity Of Contract In Violation Of Mandatory Provisions

For a long time,the validity of contract in violation of mandatory provisions has been an urgent problem to be solved in academia and practice.And for the discussion of this issue,there are disputes in both the effectiveness judgment method and the effectiveness judgment result.At the same time,there are many differences on the specific application of relevant laws and regulations in practice.With the needs of economic development and the changing social environment,there are timely requirements for the solution of this problem.How to reasonably determine the effectiveness of illegal contracts under the condition of meeting social and market needs has also become a problem that must be paid attention to.Now,in the era of the civil code,the relevant issues also have a new research perspective.This paper will also take advantage of the east wind of the civil code to deeply explore the relevant issues of the effectiveness of contracts in violation of mandatory provisions.This paper takes the contract effectiveness in violation of mandatory provisions as the research object.Firstly,starting with the concepts involved in the problem,this paper analyzes the relevant theories of mandatory provisions and the consequences of violation,and combs and summarizes the relevant legal provisions of our country.Secondly,it investigates the relevant theories and regulations on the effectiveness of contracts in violation of mandatory provisions abroad and in Chinese Taiwan.This paper summarizes the experience of Germany in solving this problem,which currently focuses on the theory of normative purpose,Japan judges its effectiveness according to the performance of illegal contracts,and illegal contracts will be given the result of non coercion and non-interference in Anglo-American law.Thirdly,combined with the differences on the determination of the validity of breach of mandatory contract in China’s judicial practice and the disputes on its determination method in theory,this paper puts forward some problems,such as the difficulties in the application of the proviso to paragraph 1 of Article 153 of the civil code,the disputes on the "dichotomy",the disadvantages of the existing invalid system and so on.Finally,in view of the above problems,this paper expounds the relevant improvement suggestions: that is,to improve the relevant judicial interpretation of the proviso to the first paragraph of Article 153 of the civil code;Using the method of interest measurement to judge the effectiveness of contracts in violation of mandatory provisions;Create and refine the relevant systems of invalid contracts to break through the dilemma of absolute invalidity.