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
Theories of justice need to go beyond the dichotomy between distributive justice and corrective justice,and to be restructured at the general level and specified or re-systematized in particular areas.As far as the th...Theories of justice need to go beyond the dichotomy between distributive justice and corrective justice,and to be restructured at the general level and specified or re-systematized in particular areas.As far as the theory of justice in the field of juristic acts is concerned,it is necessary to distinguish between internal justice and external justice.The basic path to the realization of internal justice is the protection of negative freedom,with the auxiliary path being the protection of positive freedom,reliance protection,and the principles of fairness and good faith.The concept of cause,which is based on the theory of corrective justice,is not conducive to the realization of internal justice in juristic acts,and its explanatory power with regard to the validity of juristic acts is not as great as that of the theory of expression of intent.Distributive justice,while it has a place in the system of juristic acts,can be subsumed under the protection of positive freedom in the realization of internal justice.External justice in juristic acts is the overall justice of legal order,which is based on such values as security,order,morality,etc.Focusing on the fundamental attributes of juristic acts,internal justice takes precedence over external justice;therefore,the normative elements of external justice should intervene in juristic acts in a restrained manner,and may negate the validity of juristic acts only when necessary.展开更多
Law is all but not known for innovation.This is also true for studies in Roman private law,which have followed a system that is imagined to derive from the 2nd century AD jurist Gaius and late antique Justinianic codi...Law is all but not known for innovation.This is also true for studies in Roman private law,which have followed a system that is imagined to derive from the 2nd century AD jurist Gaius and late antique Justinianic codification.The shaping hands of the ancient codifiers and those of the medieval,early modern and 19th century jurists on Roman private law and the related legal discourses have been identified and studied at length.However,a real shift to discover the ways in which Roman private law became formed and was practiced has not been undertaken in comprehensive manner until the publication of the Handbook of Roman Private Law which is reviewed in the following from the perspective of an ancient historian.展开更多
The special report meeting of the central Party and state institutions on‘100 lectures of 100 jurists’of 2025 on the publicity of the rule of law was held on July 23,2025 in the small auditorium of the Great Hall of...The special report meeting of the central Party and state institutions on‘100 lectures of 100 jurists’of 2025 on the publicity of the rule of law was held on July 23,2025 in the small auditorium of the Great Hall of the People.Wang Hongxiang,Party Secretaryand Executive Vice President of the China Law Society,presided over the report meeting.展开更多
Administrative license is closely related to validity judgments on civil juristic acts. In terms of civil law, an administrative organ, under administrative license, allows citizens, legal persons or other organizatio...Administrative license is closely related to validity judgments on civil juristic acts. In terms of civil law, an administrative organ, under administrative license, allows citizens, legal persons or other organizations to engage in specific activities. Some of these activities fall under approved factual acts;some are approved civil juristic acts;and some depend on the particular situation, sometimes belonging to factual acts, sometimes to civil juristic acts. Correspondingly, some provisions for administrative license found in law or administrative regulations are mandatory provisions falling under simple norms;some are mandatory provisions falling under complex norms;and some depend on the particular situation, sometimes belonging to the former and sometimes to the latter. Where a party intends to rule out the application of such mandatory provisions by virtue of agreement on the intent of the civil juristic act, Article 153(2) of the Civil Code of the People’s Republic of China shall be cited to hold that the agreement is absolutely invalid. Where the civil juristic act of a party violates mandatory provisions falling under complex norms, Article 153(1) of the Civil Code of the People’s Republic of China shall be invoked to judge its validity.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.
文摘Theories of justice need to go beyond the dichotomy between distributive justice and corrective justice,and to be restructured at the general level and specified or re-systematized in particular areas.As far as the theory of justice in the field of juristic acts is concerned,it is necessary to distinguish between internal justice and external justice.The basic path to the realization of internal justice is the protection of negative freedom,with the auxiliary path being the protection of positive freedom,reliance protection,and the principles of fairness and good faith.The concept of cause,which is based on the theory of corrective justice,is not conducive to the realization of internal justice in juristic acts,and its explanatory power with regard to the validity of juristic acts is not as great as that of the theory of expression of intent.Distributive justice,while it has a place in the system of juristic acts,can be subsumed under the protection of positive freedom in the realization of internal justice.External justice in juristic acts is the overall justice of legal order,which is based on such values as security,order,morality,etc.Focusing on the fundamental attributes of juristic acts,internal justice takes precedence over external justice;therefore,the normative elements of external justice should intervene in juristic acts in a restrained manner,and may negate the validity of juristic acts only when necessary.
文摘Law is all but not known for innovation.This is also true for studies in Roman private law,which have followed a system that is imagined to derive from the 2nd century AD jurist Gaius and late antique Justinianic codification.The shaping hands of the ancient codifiers and those of the medieval,early modern and 19th century jurists on Roman private law and the related legal discourses have been identified and studied at length.However,a real shift to discover the ways in which Roman private law became formed and was practiced has not been undertaken in comprehensive manner until the publication of the Handbook of Roman Private Law which is reviewed in the following from the perspective of an ancient historian.
文摘The special report meeting of the central Party and state institutions on‘100 lectures of 100 jurists’of 2025 on the publicity of the rule of law was held on July 23,2025 in the small auditorium of the Great Hall of the People.Wang Hongxiang,Party Secretaryand Executive Vice President of the China Law Society,presided over the report meeting.
基金a phased result of the key project of the National Philosophy and Social Science Fund of China “Research on Major Difficult Issues in the Codification of the Civil Code”(14ZDC017)。
文摘Administrative license is closely related to validity judgments on civil juristic acts. In terms of civil law, an administrative organ, under administrative license, allows citizens, legal persons or other organizations to engage in specific activities. Some of these activities fall under approved factual acts;some are approved civil juristic acts;and some depend on the particular situation, sometimes belonging to factual acts, sometimes to civil juristic acts. Correspondingly, some provisions for administrative license found in law or administrative regulations are mandatory provisions falling under simple norms;some are mandatory provisions falling under complex norms;and some depend on the particular situation, sometimes belonging to the former and sometimes to the latter. Where a party intends to rule out the application of such mandatory provisions by virtue of agreement on the intent of the civil juristic act, Article 153(2) of the Civil Code of the People’s Republic of China shall be cited to hold that the agreement is absolutely invalid. Where the civil juristic act of a party violates mandatory provisions falling under complex norms, Article 153(1) of the Civil Code of the People’s Republic of China shall be invoked to judge its validity.
