Study of Mandatory Norms and Contract Effectiveness
|School||Southwest University of Political Science|
|Course||Civil and Commercial Law|
|Keywords||Peremptory norms Regulatory purposes Interest Measurement The principle of proportionality Effectiveness|
With the gradual improvement of the legal norms in China, the development of China's civil law will enter into the second phase - the interpretation and application of the legal stage. The Mr. Wang Zejian: real legal development is the application of the law. Therefore, the interpretation of legal norms will be in the future for a long time the main research direction. Professional students as a civil and commercial law, the most important is also the interpretation of the law to learn to technology the peremptory norms applicable undoubtedly an important medium for the connection of the theory and practice of technology. The relationship between peremptory norms and the validity of the contract has been hot and difficult problems in the civil law, it relates to how to treat the relationship between the public and private law, involving the judicial practice, the problem of how to interpret the validity of the contract in violation of peremptory norms. Therefore, the study of this question has important theoretical and practical significance. From the connotation and denotation of peremptory norms, 5, Section 52 of the Contract Law, compare, summarize and comment on abroad and the status quo of Taiwan research on the the contract effectiveness of breaches of peremptory norms, as it can learn from them, and thus the interpretation and application of the peremptory norms of our own point of view. The paper is divided into three parts: the first part: peremptory norms defined; Part II: Comparative Study of peremptory norms and the validity of the contract; Part III: China's interpretation and application of the peremptory norms. Part I: peremptory norms defined. This section consists of three parts. The first is the connotation of peremptory norms. Followed by the extension of peremptory norms, \logic of its peremptory norms under peremptory norms of public law, which is the main object of study in this article. Peremptory norms source of law rank again, I believe that at this stage to take the necessary rank said, and the direct source of law that the Constitution of the non-mandatory specification to resolve the legal status of the judicial interpretation of the Supreme Court, The power of interpretation given to the Supreme Court. Part II: Comparative Law of the peremptory norms of validity of the contract. This section through the use of comparative law research methods, in turn introduce the status of Germany, Japan, Britain and the United States and Taiwan, and make a summary and assessment. Influence in Germany regulate purposes; most influential study in Japan is a comprehensive judgment said that public order is the prerequisite for economic and fundamental rights protection said; illegal contracts in the United Kingdom and the United States to determine the effectiveness of the method is contract interests and the interests of the public policy measure; the deepest German theoretical and practical circles approach is introduced to Professor Su Yongqin. Part III: of peremptory norms of interpretation and application. This section mainly consists of three parts. First, our scholars and Comment. Chinese scholars recognize the \Depth along said regulatory purposes and fundamental rights protection that research. Scholars have made a number of consensus: the contract does not necessarily invalid breaches of peremptory norms; explore the normative judgment on the validity of the contract to be the purpose, benefit-measure; prevent excessive state intervention in the freedom of contract. But need further research on how to explore regulatory purposes, the peremptory norms of public order and good morals are the kinds of relationships, how to limit state intervention. Second, the public and private law relative separation of de jure concept. The peremptory norms behind the validity of the contract implied relationship of public and private law and its function. I uphold the relative separation of public and private law jurisprudence view, I believe that the ultimate pursuit of the law is freedom, and the boundaries of freedom embodied in the law is the peremptory norms of public and private law behind the pursuit of common values ??- freedom limited legal acts justified a ground. Third, the interpretation and application of the peremptory norms. The first is the recognition of the peremptory norms, standards ultimately depends on the specification purposes. For regulatory purposes, should be the main objective purpose, supplemented by subjective purpose. Explore the specification purposes, should start from the specific law legal relations department law, as a supplement to the official interpretation of documents released. Secondly, in the interests of the measurement part, the author discusses the relationship of the peremptory norms of public order and good morals, I believe that at this stage should be both dualism grasp; interests measurable field should be specific cases or legal relationship. Again peremptory norms to intervene in the legal acts of judgment, by the second part of this paper Comment on comparative law, determine the path we must take, restrict the intervention of legal acts effective method is proportional said, the author of the two merger called entity control and process control; micro fulfill or not should be as important considerations identified breaches of peremptory norms of validity of the contract;, in violation of the the peremptory norms contract effectiveness judgment can be divided into three levels in the vertical. The ultimate end of this article are peremptory norms of applicable based on 5 of Section 52 of the Contract Law, as well as contract law judicial interpretation of \The intermediate states are the result of the two explanations.