论违反强制规范的合同——以合同效力为中心.pdfVIP

公法强制规定因所属部门法的立法目的、调整方法、功能等方面的差异， 对合同效力所产生的影响也不相同。具体而言，违反宪法强制规定的合同 效力应当根据具体化的下位法规定判断，无具体化的下位法时，根据合同 对公序良俗的违反程度判断合同的效力；违反刑法及治安管理处罚条例的 合同属于绝对无效合同；违反行政法强制规定的合同效力应当按照前述综 合方式进行判断。 关键词：强制规定；任意规定；识别标准；合同效力 3 4 ABSTRACT The autonomy in private territory is an important principle to form a private relationship on civil law; the contracts are tools to achieve autonomy. The mandatory provisions have built the limits of the autonomy in private territory, and at the same time, they also limit the possibility of forming a private relationship by contracts. How to identify peremptory norms? Is the provision on violation of the mandatory norms a pure quote or general authorized terms to the judges? Are the results of evaluating the effectiveness of the contracts which violate peremptory norms only one choice of void? This paper is divided into four parts on the issues discussed above; the second and the fourth part are the focus of this paper: The first part is the case and the issues that rose up, I put forward my study focus by the judicial practice of violations of the mandatory provisions of the contract - how to identify violations of the mandatory provisions? How to evaluate the validity and the regular function of the Contract Law 52? The second part is mainly to solve the question: how to identifying the mandatory provisions. The mandatory provisions should be judged by the combination of judgments of form and substance , the first step is to see whether a provision contains the words such as “should , must, shall not, prohibit and so on . Generally speaking, if a provision contains the