Norms of legality in relation to the validity of juristic acts (rechtsgeschft): the influence of public law on the effect of juristic acts and its limitations

摘要

“” “”“” It is a common principle in all countries that juristic acts that violate jus cogens are invalid. This may be termed “norms of legality” in relation to the effect of juristic acts (Rechtsgeschft). This refers only to jus cogens in public law, since jus cogens in private law is self-governing or autonomous in nature and its violation results at worst in ineffectiveness rather than invalidity. In determining whether legal acts that contravene public law are valid, the objectives of the related public laws must be examined and the principle of proportionality applied to limit the interpretation of the objectives of the public law in question, in order to further distinguish obligations in public law from those in private law. Local laws and administrative rules cannot be excluded completely in the application of civil law. Violation of the law and violation of public order and good custom have totally different effects and cannot be treated as the same thing.