Study On The Contract Effectiveness Of Violation Of Mandatory Provisions From The Perspective Of Civil Code

In 2021,the Civil Code of the People’s Republic of China(hereinafter referred to as the "Civil Code")finally came into force in China.As the essence of Chinese civil law,the Civil Code summarizes the previous achievements of China’s civil law legislation,eliminates the complexity and simplifies it,and forms the first systematic code in China.The introduction of the Civil Code has solved many of the problems left over from the former Civil Code era,but there are still some academic confusions that remain unresolved.The issue of the validity of contracts that violate mandatory provisions is one of them.The distinction between effective and regulatory mandatory provisions in the era of the Contract Law of the People’s Republic of China(hereinafter referred to as the "Contract Law")has not yet been finalized,and the Civil Code and the Interpretation of the General Provisions of Contracts(Draft for Comments)(hereinafter referred to as the Draft for Comments)have not clearly responded to the controversy of how to determine what mandatory provisions are violated and whether they are violated.How to determine what mandatory provisions will lead to the invalidation of the contract,whether the violation of mandatory provisions in regulations and systems other than laws and administrative regulations will not invalidate the contract,and how to characterize the relationship between mandatory provisions and the provisions of public order and morality are not regulated by existing laws,and need to be further improved through the judicial interpretation of the contract to solve the problem.This thesis is divided into five parts.The first chapter is an introduction,which introduces the relevant research background and other contents.The second chapter is problem-oriented and presents the general problems of the academic community regarding the system of contract validity for violation of mandatory provisions,and explains the meaning and characteristics of mandatory provisions.By summarizing and analyzing the different categories of mandatory provisions,this thesis presents the understanding of mandatory provisions and defines the concept of mandatory provisions.Chapter 3 first analyzes the current legislative status of the system of contract validity for violation of mandatory provisions,starting with the legislative model of Article 153 of the Civil Code,followed by a comparison of Article 153 with Article 52,Item 5 of the Contract Law.We then compare Article 153 with Article 52(5)of the Contract Law,and draw out the shortcomings of the current legislation on this issue.Then,we analyze the current situation of Article 153 of the Civil Code in China’s judicial practice through data statistics of court decisions after the implementation of the Civil Code,identify the pain points of the application of Article 153 of the Civil Code,and analyze the reasons for the marginalization of this law.The fourth chapter is about the foreign system of contract validity in violation of mandatory provisions and its inspiration to China,through analyzing the relevant legal provisions and the evolution of the system of contract validity in violation of mandatory provisions in civil law and common law countries,finding the common and different points with China’s system,and summarizing the problems and experiences of civil law and common law systems,so as to provide reference for China to improve the system of contract validity in violation of mandatory provisions.Chapter 5 proposes the improvement of China’s contractual validity system.Chapter 5 puts forward suggestions for improving China’s system of contract validity in violation of mandatory provisions,divided into two aspects: legislation and justice.From the legislative aspect,the content of mandatory provisions should be further clarified,improve the status of Article 153 paragraph 2,issue more detailed provisions to make the two provisions of Article 153 to better play a complementary role,play the role of public order and morality provisions of the bottom,and follow the trend to solve the problem of mandatory provisions of legal status.From the judicial side,the judicial application to change the thinking,find another way,combined with the theory of law and economics,the violation of mandatory contracts for comprehensive consideration;to the purpose of interpretation-oriented,guided by the principle of proportionality to carry out a balance of interests in the application of mandatory provisions of the law to explore,in order to help solve the problem.