Contrary to the approach in judicial practice,Paragraph 1,Article 153,of the Civil Code of the People’s Republic of China,as a rule of invalidity for violating mandatory provisions,does not adopt a dichotomy towards ...Contrary to the approach in judicial practice,Paragraph 1,Article 153,of the Civil Code of the People’s Republic of China,as a rule of invalidity for violating mandatory provisions,does not adopt a dichotomy towards mandatory provisions with effectiveness and administrative characteristics,yet it maintains the legislative philosophy of differentiation.It leaves unspecified whether mandatory provisions that do not explicitly render a juristic act invalid impact the act’s validity,entrusting this determination to the discretion of judges on a case-by-case basis.When judges,under the authority of Paragraph 1,Article 153 of the Civil Code,explore the normative intent of mandatory provisions to assess their effect on the validity of juristic acts,they should engage in legal policy analysis centered on consequence-based argumentation to overcome the limitations of norm typological analysis.This analysis employs a reasoning model predicated on the normative purpose,utilizing a consequencefocused interpretative approach for formulating and arguing propositions of rules applicable to pending cases,thereby arriving at case-specific conclusions.Since the invalidation of juristic acts serves as an auxiliary regulatory tool for the state economy and society,a consequence-oriented interpretation needs to be based on the idea of mutual instrumentalization of public and private laws.This entails predicting the outcomes of negating the validity of a juristic act in industrial regulatory scenarios and assessing these outcomes within the framework of public and private regulatory instruments.展开更多
文摘Contrary to the approach in judicial practice,Paragraph 1,Article 153,of the Civil Code of the People’s Republic of China,as a rule of invalidity for violating mandatory provisions,does not adopt a dichotomy towards mandatory provisions with effectiveness and administrative characteristics,yet it maintains the legislative philosophy of differentiation.It leaves unspecified whether mandatory provisions that do not explicitly render a juristic act invalid impact the act’s validity,entrusting this determination to the discretion of judges on a case-by-case basis.When judges,under the authority of Paragraph 1,Article 153 of the Civil Code,explore the normative intent of mandatory provisions to assess their effect on the validity of juristic acts,they should engage in legal policy analysis centered on consequence-based argumentation to overcome the limitations of norm typological analysis.This analysis employs a reasoning model predicated on the normative purpose,utilizing a consequencefocused interpretative approach for formulating and arguing propositions of rules applicable to pending cases,thereby arriving at case-specific conclusions.Since the invalidation of juristic acts serves as an auxiliary regulatory tool for the state economy and society,a consequence-oriented interpretation needs to be based on the idea of mutual instrumentalization of public and private laws.This entails predicting the outcomes of negating the validity of a juristic act in industrial regulatory scenarios and assessing these outcomes within the framework of public and private regulatory instruments.
