| The issue of invalidity of legal act on account of violation of public order has been the focus of debate among academics and practitioners of law for a long time.Different typological studies have been conducted by academics by relying on either foreign theories or the investigation of domestic cases.However,from the perspective of legal methodology,any kind of typological study must move towards hermeneutics,so that it can provide a stable evaluation system.Nevertheless,the invalidity of legal act essentially touches upon the reconciliation between autonomy of private law and other values,which is beyond the scope of the traditional framework of civil law hermeneutics that takes autonomy of private law as its apex.Therefore,we need to introduce the perspective of fundamental constitutional rights theory in order to clarify this hermeneutic issue involving different branches of law.According to the fundamental rights theory,restrictions on fundamental rights can be categorized into two categories,that is,restrictions based on real conflicts between fundamental rights and restrictions based on public interest.Accordingly,mandatory provisions and public order that restrict legal acts can also be divided into two categories:norms intended to protect fundamental rights and norms intended to achieve public interests.We should adopt different hermeneutic frameworks for the application of these two different types of norms and combine them with a bottom-up extraction of precedent norms from particular court cases,so as to eventually construct a cross-domain framework of hermeneutic analysis on this issue. |
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