Mandatory norms in contract law

下面为大家整理一篇优秀的assignment代写范文- Mandatory norms in contract law，供大家参考学习，这篇论文讨论了合同法中的强制性规范。合同法中的强制性规范在学术领域及私法领域都是备受关注的焦点，强制性规范在法律制定层面不断进行了修改和完善，《合同法》第52条第5项及《合同法解释 (二) 》是立法者目前就认定违反强制性规定的合同效力之事项对司法者的概括授权。

Compulsory norms in contract law in the academic field and law field is the focus of attention, has traditionally been to mandatory norms in the aspect of law in China has been modified and improvement of our country "contract law" in article 52 5 and the law of contract interpretation by lawmakers now that violate the provisions of the mandatory contract effectiveness of judicial matters that is a generalization of authorization. However, it is still possible for this part of the contract to escape the restrictions of mandatory provisions, and its application in practice cannot be called comprehensive and systematic. Moreover, the absolute invalidation of the contract is not prudent enough in China.

Our country "contract law" in article 52 5 and the law of contract interpretation once he caused a huge repercussion, because as the leading role of mandatory specification does not have a more detailed specific recognition criteria, and no behavior violate the mandatory standard content of contract and the consequences of different processing, the court now to understand and apply the phenomenon of each are not identical, the same in the academic circle, there is a big discussion on it. So how exactly do you identify the meaning and classification of mandatory norms? What is the function and significance of its existence? Can the content and system of article 52 of the contract law be called complete? Will the concept of mandatory norms be included in the future civil code codification? How should the system be established in the future? Since mandatory norms play an important role in affirming the validity of contracts and confirming that the private rights of the parties are not violated, and can play a role in maintaining the social and economic order, these unanswered issues are urgent issues to be solved in the future civil code legislation and judicial reform.

In fact, the term "mandatory norm" is no longer a strange word in today's society. It appears in many similar names in various disciplines, such as "mandatory", "forbidden", "mandatory" and "regulation", "norm" and "rule". Mandatory norms are often opposed to arbitrary norms. The main difference is to confirm whether the parties' subjective will or will can directly reject the application of relevant provisions or modify the contents of the provisions. Once this condition can be achieved then we can consider the provision to be arbitrary and otherwise mandatory. So clearly, mandatory norms refer to those legal norms that do not allow the parties to agree to exclude the application or change the content.

However, as mandatory norms themselves also have the necessity of further classification. In the past habit of Chinese academic circles, mandatory norms in the broad sense are divided into mandatory provisions and prohibition provisions, and we subdivide prohibition provisions into mandatory provisions of management nature and effectiveness nature. We found in the actual exploration, however, could be divided into mandatory general compulsory norms and prohibited provisions not only cumbersome and do not have meaningful, p.16 professor believes in its written a mandatory provisions and the difference is only the "order the parties to a certain behavior of law" it seems the function of the two kinds of classification methods are not in the specification level to determine whether the contract failure protection role, today's contract law also does not use this kind of classification of complicated expression, but in the "law of contract interpretation" puts forward the concept of effective compulsory norms. Therefore, the author thinks that from the practical significance, it is not necessary to distinguish between mandatory provisions and prohibition provisions, and it is more appropriate to divide the generalized mandatory norms directly into managerial mandatory norms and effective mandatory norms in terms of efficiency.

In history, the denial of the effectiveness of legal ACTS that violate mandatory norms is a continuous succession. "Private contracts do not damage public laws" and "illegal and vulgar ACTS are invalid" are all predecessors' summaries of this core idea. We can find that the civil codes of various countries, including the German civil code and the Japanese civil code, reflect this content. In order to expect better narration, some scholars refer to such a norm as "proper norm". In the contract law of our country, similar applicable laws are mainly reflected in the contract law of article 52, item 5, "mandatory provisions of illegal laws and administrative regulations". In the later "interpretation of contract law (I)" and "interpretation of contract law (II)", it is pointed out that the basis for confirming the invalidity of a contract is to exclude local laws and administrative rules and regulations, and to confirm that mandatory norms refer to mandatory norms of effectiveness. Through this series of legislative changes in China, we can find that the scope is limited to mandatory provisions of effectiveness rather than other broad legal norms, the invalidity of contracts may not be abused in large quantities. It can be seen from these that the legislator has made positive changes to protect the trade order and is determined to maintain the market economic order. At the same time, it can also find his thoughts on changing the current legislative status quo.

What is the function of these contents in the contract law? We can see it from two aspects. "From the perspective of the whole legal system, article 134 of the German civil law has a function that cannot be ignored, which is to provide a channel for the regulation of public law to enter the field of private law." this is professor su yongqin's view on article 134 of the German civil law. Our country "contract law" article 52 item 5 is almost the same with the content of article 134 of the German civil law, of course, we can say that this is in play a public law norms into vessel function in the field of private law, and the more primitive function is effective by denying these behavior and maintain the legal behavior of the order, this is the first heavy function "cause" function. From the nature, we can find that the regulation of these functions as "channels" actually produces the control effect of public law, and thus plays the role of monitoring and controlling public law at the level of private law. In this way, the "hand" of public law is stretched too long, and the effectiveness level of public law is also imperceptibly enhanced. According to the previous customary norms of law, the norms in criminal law are brought to the field of private law. However, with the changes of society, what replaces the content of criminal law into the field of private law is the state's supervision and regulation of the private law system. From the technical level analysis, the induced function of the legal norms will make the compatibility of each legal environment become higher, and avoid some inevitable system contradictions.

In today's changing and increasingly blend of modern social life, and private law because of the lag of law itself, we also can't to be determined in each mandatory standard legal family and as clear boundaries, especially for the development of faster, legislators and the judicial system and the logic is not mature in China reflects is more obvious. Due to the different laws of different departments, some conflicts have become a normal phenomenon in the field of private law. So how do you mediate at a non-legislative level when it comes to conflicts like this? I'm afraid that in this period, in addition to relying on the judge's understanding of the law itself and the analysis of the case, what needs to be relied on more is the weighing of the case, which is what we often call the discretion. In my opinion, this is another function besides the "induced function" in article 52 of the contract law, which we can call "authorized function". Who can see the justice because of have the function which is in violation of mandatory standard contract effectiveness of the evaluation of the opportunity to, to the law by using the ideas to maximize the interests of the measure of maintaining trading order and private law independence, reduce a lot after careful evaluation of the contract shall be invalid, this function is also existed in the "contract law" article 52, 5 characteristic value.

Rank restriction is an important value and characteristic of item 5 of article 52 of the contract law of our country, which restricts mandatory norms to the rank of laws and administrative regulations. The main function of limiting the rank of mandatory norms is to reduce the invalidity identification of a large number of contracts and the value judgment of excessively denying the effectiveness of contracts, and to prevent the different legal rules caused by local protectionism and different market habits. In Germany, Japan and Taiwan area in our country, it does not adopt the method of status limit, but it also has a strict unconstitutional censorship, and members of the judiciary forming marks the unconstitutional reviewing system can have the right to review all kinds of legal norms, and because of that, there is no limit for the urgency and necessity of its status, so we can find that the strict unconstitutional reviewing system is also can reduce the invalid contract concluded that one of the means, improve the system of mandatory norms. However, there is no such unconstitutional review system in our country, that is to say, judicial personnel can only make invalid confirmation of the contract without the right of review. Therefore, as article 52, item 5 of the contract law and article 14 of the interpretation of the contract law (II), the function is also obvious, which is to reduce the identification of invalid contracts by limiting their rank. In addition, in terms of ways, China does not mainly allow judges to make discretionary decisions, but is more inclined to deny other local regulations' excessive supervision on the invalidity of contracts by restricting laws and administrative regulations, which is probably a manifestation of the control of judges' power.

But from the "contract law explanation of article 14 of the content, as lawmakers in itself is not want to directly to the effectiveness of the administrative compulsory standard level and regulate denied, but the administrative compulsory norms regulating the contents of the can, in fact, by the" contract law "item 4 of article 52" disgraceful consideration in violation of or damage to the social public interests of the contract shall be invalid "to carry out regulation. But even if you limit the rank and type of mandatory specification, it's not safe to face this problem. There is just an "extra-legal land" between article 52, item 4 of the contract law of China and article 5 of article 52 of the contract law and article 14 of interpretation (II) of the contract law of China, and this "extra-legal land" is the local regulations, department regulations and non-effective mandatory provisions. These provisions can be added to the list of nulling the validity of the contract, which is contrary to the spirit of article 52 of the contract law and article 14 of the contract law interpretation (II). We have an obligation to prevent such "extra-legal land" from damaging the budding system. It is necessary to limit the application of item 4 of article 52 of the contract law to a real and strict level, otherwise the real meaning of item 5 of article 52 of the contract law and article 14 of interpretation (II) of the contract law will be absent.

Civil law general principles in the establishment of the mandatory norm system parts caused the larger issues, in the early days, draw up the draft civil law general principles, there are many opinions are raised, including the deletion for mandatory provisions, requirements of the part of finite played the meaning of the mandatory provisions of sex, and asked to delete all the provisions of article 147 of measure of scholars from all walks of life to the dispute. However, in the final formulation of article 153 of the general principles of civil law, although it is proposed that not all mandatory provisions that violate laws and administrative regulations will invalidate the contract, the concept of mandatory provisions of effectiveness in article 14 of interpretation (II) of contract law > is not introduced into article 1. But no matter how scholars for the final result, I see more is doubt and uncertainty, as early as in the contract law explanation of article 14 in establishing the system of effectiveness of mandatory rules finally replaced in this way, actually represent the lawmakers behind negative attitude for the system to establish, or wait until the civil code when formally introduced in the united state for the contract? The author can only make a few ideas and assumptions here.

A proviso is a special provision that is inserted into the main text of a statute to limit the application of a provision, which is a proviso. Legal proviso is common in legal provisions. How to interpret legal proviso is extremely important in judicial practice, and it is even more necessary for the civil code being established in China. Of course, in the legislation of other countries, there are no proviso provisions, such as Switzerland and other countries. Instead, judicial personnel have a high degree of discretion, which is roughly consistent with the practice effect of other proviso provisions. Compared with other legislation, however, we can find that "contract law" in article 52 5 content does not exist but also did not give the judge's discretion so highly, then result in the existing legal system as the judge can only pursue is found on the surface of the law, that is to say as long as there is the discovery of contract for the violation of the laws and administrative rules and regulations can only be sentenced its invalid, such laws are become the shackles of the judicial personnel, also in the judicial idea about and into public law and stepped in.

Our country Taiwan the party is the way to distinguish the effectiveness model) and specification for banning, professor su yeong-chin think it is for too much looking forward to the judicial organs, but for the judicial discretion and established a good connection between public law regulation and neutralization, is essentially a given law a similar functions to the proviso of the essence, is a kind of positive progress system construction method. We it is not hard to see in the idea of systematism, using the way is not in conformity with the requirements of The Times we must reject the established legal facts only with invalid or effective such binary, position of evaluation, solution to the existing problem has a lot of, but the establishment of regulations can very good to adjust the contradiction between the expansion of judicial person in violation of mandatory norms of legal behavior evaluation selection and evaluation of space, and even can better use the proportion principle and so on thought weighing; At the same time, the invalidity mitigation and diversification evaluation of contracts: including backward invalidity, partial invalidity and even undetermined effectiveness are all good solutions, and sticking to the existing architecture is not smart enough.

At any age and personality of independence and dignity will be the priority of on legal scope, especially private law contract law is to protect the interests balance between equal subjects of the criterion and measure, which urged lawmakers in battlefield control and autonomy as soon as possible to find more suitable for the role and position: on the one hand, warm and full of human feelings of ecological system of private law, it is the equality of freedom without the intervention of public power; On the other hand, the private law under the control seems so strange, and human freedom and self-esteem seem weak and insignificant in the face of this power. In this process, various speculations about the relationship between the two parties have been assumed, whether fusion or opposition, or even the idea of cooperation. Mandatory norms in the contract law are one of the controversial areas. We in this silent "battlefield" must keep conscious recognition of reality, the core idea of civil law and civil law behavior of each basic value judgment, plus a more rational interest measure and the principle of proportion of adjuvant, we must have a chance in the future civil code of the contract together and even the whole civil code, see more rational overall is more suitable for today's China development institutions established in the end.

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