Study On The Judicial Application Of Civil Mandatory Provisions

The legal normative basis for civil mandatory provisions is article 153,paragraph 1,of the Civil Code: "Civil juristic acts that violate the mandatory provisions of laws and administrative regulations are invalid.However,this mandatory provision does not render the civil juristic act invalid.In view of this provision,the relevant judicial interpretations have made it clear that mandatory provisions can be divided into a dichotomous structure of "mandatory provisions on validity" and "mandatory provisions on management",so as to more accurately judge the validity of relevant civil juristic acts.However,the specific application of mandatory provisions has become a difficult problem,and how to make accurate judgments on "effectiveness" and"management" has aroused widespread concern in the theoretical and practical circles.There have been many studies on civil mandatory provisions,but the existing discussion is mainly based on the analysis of legal norms,focusing on the analysis of the text and theory of the law,and lacking the study of the current practical adjudication.The task of this paper is to use the typical case analysis method to excavate the law of judicial application of civil mandatory provisions,and on this basis,put forward suggestions for improvement,and build a judgment standard for the judicial application of mandatory provisions.The first part is the introduction.Explain the preliminary preparation of the paper,including the background and research purpose of the article selection,research significance and research methods,domestic and foreign literature review,etc.,do a good job in the preliminary preparation,clarify the idea of the article,and lay the foundation for the subsequent development of this article.The second part analyzes the concept of mandatory provisions.Specifically,it includes the statutory meaning of mandatory provisions,the introduction of the dual structure of mandatory provisions and regulatory mandatory provisions,the sorting out of academic views on issues related to mandatory provisions,and the author’s understanding of the validity of mandatory provisions and civil juristic acts.The concept of clear mandatory provisions is the basis for the follow-up work,and the sorting out of related issues can provide a broader perspective for the writing of this article.The third part,turning to the perspective of judicial practice,combines typical cases in practical adjudication to conduct research and discussion on the current situation of judicial application of mandatory provisions,and summarizes the laws of their application.It mainly contains three aspects: First,the general rules applicable to mandatory provisions.Second,the considerations for determining the mandatory provisions of validity.Third,the factors to be considered in determining the mandatory administrative provisions.The fourth part analyzes the problems that arise in the application of mandatory provisions.The main problems are: First,the application process lacks argumentation,and the practical adjudication of the nature of mandatory provisions is often brushed over and lacks convincing.Second,the application of legal norms is confusing,focusing on the relationship between the rules for judging mandatory validity and the rules of public order and good customs,which are independent grounds for judging validity,and confusion in application should be avoided.Third,the court’s adjudication is contradictory,and there is a lack of uniform criteria for determining mandatory provisions.The fifth part,on how to accurately apply and determine mandatory provisions,focuses on the construction of mandatory provisions of the judgment standard,from the formal identification standard to the substantive identification standard,layer by layer to demonstrate,to achieve the accurate determination of mandatory provisions.In addition,in order to more accurately determine the mandatory provisions,it is necessary to improve the system of co-adjudication of similar cases and give play to the function of the principle of good faith.