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Research on the Mandatory Norms of Civil Law

Author: WeiChao
Tutor: LinGang
School: Southwest University of Political Science
Course: Civil and Commercial Law
Keywords: civil law mandatory norms purpose for the rules identification of lawrules law set law application
CLC: D913
Type: Master's thesis
Year: 2012
Downloads: 155
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Abstract

Civil law is a kingdom of freedom, whose basic principle is autonomy of privatelaw. However, civil law protects not only freedom of individual, but also the freedomof coexistence of all beings as well as the harmony and balance between human andsociety and human themselves. Jean-Jacques Rousseau said, Man is born free, andeverywhere he is in chains. The chain, specifically, is civil law mandatory norms,which guarantee the efficient and effective function of civil law system. In otherwords, civil law cannot perform well even fall into chaos without the continuanceimprovement and development of civil law mandatory norms. Theoretical study on,together with the exploration and perfection of civil law mandatory norm in judicialpractice has significant influence on the norms themselves, civil law system and thewhole economic society.However, the study on civil law mandatory norm by Chinese scholars is still inthe primary stage. No rational or precise answers have been made to questions likewhat civil law mandatory norms are, what status they have in civil law system, whatjurisprudential foundation is, how they distribute within and outside civil law system,what styles they have and how to distinguish, what difference it is between civil lawmandatory norm and other compulsory rules in the application.Focused on the fore-mentioned questions, this thesis centers about theidentification and of civil law mandatory norm, by means of analysis of its status,jurisprudential foundation, distribution and application. Moreover, the thesis putsemphasis on discussion of how to identify different civil law mandatory norms andproblems noticed in application. The thesis divided into five parts.Part Ⅰ. Point out the inaccurate positioning of civil law mandatory norms intradition views. Suggesting that mandatory norm shall be positioned amongdiscretionary norm, authoritative norm to a party concerned, authoritative norms to athird party and semi-mandatory norm, in order to sift through pseudo-mandatory normto preclude its abuse potentially.Part Ⅱ. Elaborate jurisprudential foundation of civil law mandatory norm on four aspects, e.g. autonomy of private law and state compulsory, value estimate of privatelaw constraint, market analysis and policy selection. Hold that the limitation for theself-government in private law is a proper choice after considering from differentangels, which paves the way for following text.Part Ⅲ. Work on the positioning question of mandatory norm that within andoutside the civil law system. The thesis argues that the civil law mandatory normdistributes not only in the civil code, but also in public laws and special civil laws.The distribution is a reflection of different functions and values of mandatory norm.Part Ⅳ. This part is focused on the correct approaches to distinguish civil lawmandatory norm. First step is making a reasonable classification so that differentmandatory rules can be recognizing correctly. Finding out the interests and valuesprotected by mandatory norm in order to determine the influence on the civil acts,ascertain of the purpose of mandatory rules cannot be neglect during the identificationprocessPart Ⅴ. The main point of this part is to analyze related questions involved in theapplication of civil law mandatory norm. This article considers the application has itsown features, which is ‘screening type’ process. Giving advice to borrow ideas fromreasonable experience of foreign countries in dealing with null and void civil acts.

Research on the Mandatory Norms of Civil Law

Abstract

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