Theories and Practices of Article 71 Taiwan Civil Code
Date Issued
2015
Date
2015
Author(s)
Yang, Huei-Niang
Abstract
Article 71 Civil Code in Taiwan defines “A juridical act which violates an imperative or prohibitive provision of the act is void except voidance is not implied in the provision.” The Supreme Court has always taken the standard for distinguishing “banning norms” from “rules of effectiveness”as center focus. During the practice of Article 71: when a juridical act violates a “banning norm”, it is effective; on the contrary, when a juridical act violates a “rule of effectiveness”, it is invalid. Traditional theories also support above statement. But this standard often becomes rigid and inflexible. The interpretation of law and balance of legal interest are necessary when applying Article 71. This Paper tries to build up a more concrete and flexible structure to applying this Article. Primary, when interpreting Article 71, it is important to acknowledge that the purpose of this Article is to maintain the uniformity of law. Secondly, the paper will continue to discuss the relationship between Article 71 with public orders and morals, principle of good faith and evasive acts. Finally, this Paper defines imperative or prohibitive provision as mandatory rules that force or prohibit people to do something. In practices, this Paper still accepts the way to distinguish “banning norms” from “rules of effectiveness”, but takes the principle of proportionality as a criterion to decide which section does it belongs within the spectrum of validity and invalidity, whether it is: relative invalidity, partial invalidity, revocable or uncertain validity.
Subjects
Article 71
private autonomy
imperative provision
prohibitive provision
banning norms
rules of effectiveness
the principle of proportionality
Type
thesis
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