| Summary: | 碩士 === 國立臺灣大學 === 法律學研究所 === 107 === This thesis focuses on the topic of “mandatory rule”, discussing the validity of juridical acts infringing mandatory rules.
Private autonomy is the fundamental principle of civil law. Individuals can form legal relations for themselves on the basis of their own will. Judicial act is a tool to realize private autonomy, so to restrict juridical act, there must be sufficient legitimacy.
"Mandatory rule" have multiple meanings: (1) When the validity of a judicial act has other defects such as incapacity, mistake, deceit, duress, unauthorized agency, unauthorized disposition, these rules should not be classified under the concept of "mandatory rules", and these cases should be judged according to the respective norms. When a judicial act does not meet key elements of effectiveness, these key elements of effectiveness should not be classified under the concept of "mandatory rules". In these cases, the judicial acts are not “invalid”, but “not valid”. (2) The first meaning of "mandatory rules" is "legal norms whose legal consequence can not be excluded", which aim at fixing the legal relation between parties. In contrast, "the legal norms whose legal consequence can be excluded" are called "default rules" and "whose legal consequence can be excluded under certain conditions" are called "quasi-mandatory rules". Law may have clearly stipulated whether or not and under what conditions a certain legal norm can be excluded, such a legal provision can be called "altering rule". In the absence of an "altering rule", i.e. when the law fails to provide whether a norm can be excluded, judges should consider whether it is an excessive restriction on contractual freedom, whether parties exclude the principle of good faith and derivative provisions, and whether parties abandon fundamental rights or the excluded provisions aim at protecting the weak. This part of a judicial act which infringe a mandatory rule is invalid. The excluded legal consequence of legal norm still fixes the legal relationship between the parties. (3) The second meaning of "mandatory rules" is the legal rules which provide prohibitive border for the creation of contractual rights and obligations, for example, the lease term should not exceed 20 years. These norms delimit the boundary for the contractual freedom of the parties, and they are internal compulsion to contract freedom. In judicial acts, the part which violates the mandatory provision is invalid, for example, the part that exceeds 20 years is invalid. (4) The third meaning of "mandatory rules" is that the content, performance or purpose of contracts violate the obligation of conduct created by law, which is an external compulsion of contract freedom. (a) Illegal content: the imperative or prohibited obligations of conduct created by law shall not be violated by the content of a contract. In other words, the acts prohibited by law (homicide, gambling) shall not be the content of contracts; as to the acts ordered by law (taxation), the omissions shall not be the content of contracts. The source of obligation of conduct includes the prohibition of act and the prohibition of contract. Judicial acts infringing obligation of conduct are void. However, when the legal provisions are designed to protect one party, the contract is relative invalid. When one party is innocent, the contract is valid and the innocent party has right to claim damages for performance interest. (b) Unlawful performance: In addition to the content of the contract is illegal, contracts may also violate the obligations of conduct (such as transport overload) in the stage of performance, and the party who perform the contract illegally has no right of remedy for breach of contract. (c) Illegal purpose: if the contract is unlawful in purpose (such as buying knife to kill others), the contract is invalid when one party knows or ought to know the other party''s unlawful purpose; it is valid when one party does not know and ought not to know the other party''s unlawful purpose, and the innocent party has right to claim damages for performance interest.
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