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Research on Juristic Act Against the Law

Author: LiuJianGuang
Tutor: HuoCunFu
School: Jilin University
Course: Legal
Keywords: Legal acts Violations of the law Acts are illegal Jus cogens Behavior of the content Management Act Contract Law in China Any method Administrative rules and regulations Administrative regulations
CLC: D90
Type: Master's thesis
Year: 2004
Downloads: 272
Quote: 2
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Abstract


There is a systematic research on the problem of illegaljuristic act. It is made up with five parts: the first part analyses themeaning of the illegal juristic act; the second analyses the legaleffect of the illegal juristic act; the third discusses how to assert thelegal effect of a specific illegal juristic act; the fourth analyses therelations between administrative regulations and the effect ofjuristic act; the last researches on “the contract which violates themandatory provision of law or administrative regulations isinvalid”. In the first part, first of all, according to the classification ofperemptory rule, permissive rule and initiative rule, the researcherpoints out that illegal juristic act means violating the mandatoryrule. Then, the researcher analyses the differences between theillegal juristic act and illegal act, and thinks that illegal juristic actitself is not a appropriate category, though it has the grounds inlegislation and has been sanctified by usage and stresses that illegalact doesn’t belong to the illegal juristic; I think the generalizationof the range of the illegal juristic act in tradition is not correct,according to the theories of civil law and the real state oflegislation. The illegal juristic act is comprised of illegal contentand illegal form. Finally, the researcher maintains that illegalsubject and other illegal factors can be adjusted by the basicprinciples of civil law, in order to remedy the gaps and omissions 46<WP=53>that explaining the illegal juristic act strictly is likely to lead to. The second part analyses the legal effect of the illegal juristicact. The researcher thinks, illegal content of juristic act should beappraised flexibly. First of all, effect evaluation has tool valuesused to balance conflicting interests. Traditional logic explanationhas some rationality, but it was unilateral at the same time. I amagainst that it is established to satisfy the purpose of the state law.Juristic act whose form is illegal is invalid, because form whichmandatory rule regulates is a special effective essential commonly.But form that is regulated in order to protect the counterpart’sbenefit or to satisfy the demand of administration is not theeffective essentials. Violating that rules, effect of juristic act shouldnot be influenced. The third part discusses how to assert the legal effect of illegaljuristic act. First of all, the researcher appraises the existingtheories. Then, I summarize the illegal juristic act into three types:the first one is that the content of juristic act violates the mandatoryrule; the second is that juristic act is forbidden straightly by themandatory rule; the third is that the mandatory rule can’t beimplemented because of the implementation of juristic act. Theresearcher explains the legal results of violating these three typesseparately. As to the first type, I think, the problem is how todifferentiate the mandatory rule from permissive rule. And I thinkconstruction of law is the basic way to differentiate the mandatoryrule from permissive rule .As to the second one, the researcher 47<WP=54>differentiates violating prohibitive rules of civil law from violatingprohibitive rules of public law further, and analyses the effectseparately. The researcher thinks that juristic act against theprohibitive rules of civil law is invalid. If some mandatory rulescan be as the right relief rules, we should not deny the effect ofjuristic act. But the political rules should have the power to denythe effect of juristic act. If public law rules forbidden certainbehavior to be the target of juristic act, we can deny the effect ofjuristic act with exception; we can treat them with certaindiscrimination in single side and both sides .The norm of lawwhich aims at single side is management regulation, we don’t needto deny its effect. But if norm of law aims at both

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