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Chapter 327 Disputes over Illegal Construction Sales Contracts (5)

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    ?

    Li Yike nodded frequently, agreeing with Lin Ziyao's point of view.

    Li Yike stared at Lin Ziyao's profile, and now Lin Ziyao was so confident that it was dazzling.

    Li Yike's gaze towards Lin Ziyao was quickly caught by Wu You, and a flash of inspiration flashed in Wu You's mind.

    Everything happened in the blink of an eye, and Lin Ziyao, the person involved, didn't notice it at all. She continued: "After the "Property Rights Law" was promulgated, some scholars believed that the legislative structure of dividing debts into assets in our country has basically been established. I think this can be used as our point of view.  .¡±

    Lin Ziyao spoke dryly, she touched Li Yike with her elbow, motioned Li Yike to continue, and she sat down and panted.

    Li Yike discussed with Lin Ziyao before, and seamlessly connected with Lin Ziyao's words: "Article 15 of the "Property Law" stipulates that when the parties conclude a contract related to the establishment, modification, transfer and elimination of real property rights, except  Unless otherwise stipulated by the law or otherwise agreed in the contract, the contract becomes effective when the contract is established; if the registration of property rights is not completed, the validity of the contract will not be affected. The "contract" in this legal provision is obviously the cause of the change of real property rights, that is  Obligatory rights contract; and "no registration of property rights", under the premise that our country adopts the principle of publicity and effectiveness, it is obvious that the property rights have not changed. In addition, "The Interpretation of the Supreme People's Court on the Applicable Law in the Trial of Sales Contract Dispute Cases"  Article 3: If one of the parties claims that the contract is invalid on the grounds that the seller has no ownership or right to dispose of the subject matter when the contract is concluded, the people's court shall not support it. The seller cannot transfer the ownership of the subject matter because he has not obtained ownership or right to dispose of the subject matter.  If the recipient requires the seller to bear the liability for breach of contract or to terminate the contract and claim damages, the people's court should support it. This judicial interpretation also reflects the legislative principle of dividing the debt into property.

    "This is a good entry point." Wu You said, "but the other party is bound to make a fuss about the illegality of the subject matter, citing Article 52, Paragraph 4 of the Contract Law to damage the 'public interest' and Paragraph 5, 'contract illegal laws and regulations.  Mandatory provisions 'invalid, to rebut."

    Wu You wrote down the words "public interest" and "mandatory legal regulations" on the whiteboard.

    Lin Ziyao took a sip of tea, then smiled wryly: "Today's theoretical knowledge is a little too dense."

    Wu You joked heartily: "Yes, you are all tested."

    Lin Ziyao said: "I think there is little chance of winning by citing paragraph 4 to harm the public interest. After all, what is "social public interest" has not yet been clearly defined in the theoretical and practical circles. It should be said that "social public interest"  Both connotation and boundary are too uncertain and abstract. In the past, "harming the public interest" was used as a catch-all clause, but in recent years, judicial practice has realized that if the judge judges the contract  When it becomes effective, it is tantamount to giving judges too much discretionary power to judge the contract to be invalid based on the application of "violating the public interest" among many laws and regulations, which is not conducive to maintaining the security of the transaction; therefore, using "harming the public interest"  "The reason for determining the invalidity of a contract should be cautious. Looking at the jurisprudence in recent years and the views of the academic circles, the use of "harming the public interest" to determine the invalidity of a contract must meet two conditions: first, the premise of application is to exhaust other  Second, when applying, civil judges must cite the basic principles of civil law and weigh various legal interests in specific cases to judge whether public law norms  Repercussions in the field of private law."

    Wu You looked at the words on the whiteboard and said, "I think the other party's lawyer will definitely put forward the idea of ??'harming the public interest', but it will not be the main direction of attack. It is not easy to make an argument, and the judge will not easily adopt it.  Of course, we also need to prepare, but focus on the direction of violating mandatory norms.  "

    Lin Ziyao and Li Yike also agree with Wu You's point of view.

    Li Yike said: "Contrary to the fact that the clause 4 'harming the public interest' can be directly quoted, in essence, clause 5 of Article 52 of the Contract Law is a 'lawful norm', which cannot be violated.  , but a medium and a bridge to lead the case to a specific law, and then use the induced mandatory norms to judge the validity of the contract, instead of directly citing the "legal norm" to judge the validity of the contract."

    Wu You wrote on the blackboard again: "The words 'Applicable Laws and Regulations'".

    "Article 14 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Contract Law of the People's Republic of China (II)" limits the "mandatory provisions" to effective mandatory provisions. Only effective mandatory provisions will negate the contract  Therefore, what we want to demonstrate is that the mandatory norms violated by illegal buildings are not effective mandatory norms?¡± Wu You said.

    Li Yike couldn't answer, he looked at Lin Ziyao.

    Lin Ziyao said: "ForcedSexual norms can be divided into effectiveness norms and management norms, both of which have different impacts on the effectiveness of contracts.  If a civil juristic act violates mandatory norms of validity, the effect of its legal act in private law will be negatively affected to a certain extent, or it will be invalid, or its effectiveness is pending;  The effect will not be affected, but it may be subject to administrative law and even criminal sanctions.  How to effectively and accurately distinguish between the two is the most important thing in solving the relationship between mandatory norms and contract effectiveness, and the academic circles have different understandings on this.  Professor Shi Shangkuan believes that the key to distinguish between the two lies in ascertaining the purpose of norms, that is, "it can be considered that a legal act that is not considered to be an illegal act is invalid and cannot achieve its legislative purpose.  Actors, for regulatory provisions".  Professor Wang Liming proposed a progressive classification standard: first, if the violation of laws and regulations clearly stipulates that the contract will be invalid or invalid, then the provision is an effective norm;  If the contract will damage the interests of the state and the public, this regulation is also an effective regulation; third, if there is no circumstance in the first and second items, if the contract violates the regulation and only damages the interests of the parties, the regulation is an administrative regulation.  At present, there is no mandatory provision in the legal norms or legislative notes to clarify the nature of the clause. Therefore, the above-mentioned method of distinction cannot efficiently and accurately solve the problem of distinguishing effective norms from administrative norms.  "(Remember this site URL: www.hlnovel.com
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