As one of the important systems of Chinese mainland's civil law, the civil behavior system contains the dual contents of maintaining and restricting the autonomy of the will. Among them, the invalid civil act system aims at maintaining and restricting the autonomy of the will, so it is necessary to use the invalid civil act transformation system to alleviate the practical contradictions in many invalid civil acts. Combined with the legislation and precedents of various countries and regions, it is suggested that China should construct a general system and specific rules for the transformation of invalid civil acts, and make targeted analysis from the two fields of property law and creditor's rights law, in an attempt to prove the possibility of introducing the transformation system of invalid civil acts in China.

Paper Keywords: Invalid Civil Act Property Law Creditor's Rights Law

1986 article 58 of the general principles of the civil law stipulates seven invalid civil acts. 1999 Article 52 of the Contract Law limits the circumstances of an invalid contract to five. 1999 article 4 of the interpretation of contract law (1) defines the legal rank that leads to the invalidity of civil acts as laws and administrative regulations. Article 14 of Interpretation of Contract Law (II) in 2009 further defines the clauses that lead to the invalidity of the contract as mandatory clauses.

Although the legislation tries to accurately judge the standard of invalid civil acts, so far, the identification of effective clauses and administrative clauses is still vague, which leads to many difficulties in judicial practice. On the one hand, effective norms are often expressed in terms of "should" and "must", but not all norms expressed in this way are effective norms. In addition, some provisions in the management norms involving public interests may be invalidated by directly applying the provisions of Item 4 of Article 52 of the Contract Law in practice. In fact, the system of invalid civil behavior transformation has been applied in China's justice. For example, Article 1 1 of the Interpretation on the Trial of Disputes over State-owned Land Use Rights Contracts stipulates: "Without the approval of the relevant departments, the contract concluded between the land use right holder and the transferee to transfer and allocate land use rights is invalid". However, according to Article 13 of this Interpretation, if the relevant department transfers the land to the transferee before the prosecution, the invalid contract concluded between the land use right holder and the transferee can be treated as a compensation contract. The legislator's original intention is that "13 only uses the invalid civil behavior transformation system to transform the invalid transfer contract of allocated land use right into a compensation contract." In addition, Article 46 of the Supreme People's Court's Answers on Several Issues Concerning the Trial of Real Estate Development and Management Cases before the Implementation of the Real Estate Management Law also transforms the invalid cooperative housing relationship into a loan relationship. However, the universality of the above special provisions is limited after all. In order to solve the chaotic situation of invalid civil behavior transformation, the author believes that China urgently needs to build a formal invalid civil behavior transformation system.

The transformation system of invalid civil acts can be applied to all fields of civil law. China should stipulate general principles in the general principles of the future civil code to guide the whole field of civil law and create institutional conditions for all possible transformations. By summing up the successful experience of legislative and theoretical transformation in various countries and regions and the cases that often appear in China's practice, special clauses are stipulated in each clause. Drawing lessons from foreign advanced experience and combining with China's specific system, the author further discusses the application of invalid civil behavior transformation system in property law and creditor's rights law.

First, the transformation of invalid civil acts in property law.

The statutory principle of real right determines that many provisions of the real right law are mandatory. Once it is violated, the civil act is invalid, which provides a great space for the application of the system of transforming invalid civil acts.

(1) Invalid real estate mortgage is converted into secured real estate mortgage, which can only take effect after registration. Without registration, the establishment of real estate mortgage is invalid. Invalid mortgage can be converted into guarantee within the value of collateral. At this time, although the creditor lost the priority right of compensation for the specific property, it gained the opportunity for the guarantor to guarantee the equal realization of the creditor's rights with all his property within the value range of the original mortgaged property. The guarantor's guarantee scope is also within the scope of the original mortgaged property value, and its obligations are not increased. But at this time, the guarantor should be a third person other than the debtor, because the debtor needs to use all his property to ensure the realization of the creditor's right, and it is useless to reform it. Is the transformed guarantee a general guarantee or a joint guarantee? General guarantee, the guarantor has the right of first appeal; And the guarantor must perform the guarantee responsibility when the debtor fails to perform the debt. In mortgage, as long as the debtor fails to perform the debt, the creditor has the right to realize the mortgage right immediately, which shows that joint guarantee is similar to the realization of mortgage right, and invalid mortgage should be transformed into joint guarantee.

(2) The principle of statutory property rights determines that the types and contents of property rights are strictly in accordance with the law. If a party creates a property right that is not stipulated by law, the civil act is invalid, but the invalid civil act of property right can be converted into creditor's rights. For example, Article 1059 of the German Civil Code stipulates that the usufructuary right shall not be transferred. The usufructuary right can be exercised by others. Accordingly, after the assignment of usufructuary right was invalid, German precedent transformed it into the assignment of usufructuary right. Another example is that the parties agree in the chattel lease contract that the lessee has the priority to purchase the chattel in real right. As China's Property Law has no provisions on the preemptive right of movable property, the agreement is invalid. But this agreement can be transformed into the preemptive right in the law of creditor's rights.

(3) The pledge of invalid pledge as mortgage must be delivered by the pledgee to the pledgee. However, in the current civil and commercial activities, there will be many cases where the subject matter is not delivered, and the establishment of the pledge right is invalid at this time. The recognition of chattel mortgage in China provides an opportunity for the transformation of civil behavior. Invalid pledge can be transformed into chattel mortgage, because both pledge and mortgage are realized by securing creditor's rights with specific property.

German case law invalidates the transfer of land ownership and turns it into the establishment of easement. This situation has no room for application in China. China's land ownership can only be owned by the collective and the state, and the transfer of land ownership between private individuals is an unauthorized act. As mentioned above, this kind of civil behavior has caused damage to the interests of the third party, so it cannot be transformed. In addition, there are cases in Germany where invalid pledges are converted into liens. The establishment of the pledge requires a written form. Without legal form, the pledge is invalid. The transformation of invalid civil behavior needs to consider the wishes of the parties. In particular, the transformation of interpretation is directly driven by human meaning. Lien is a legal right, the exercise of which is promoted by law. If it meets the conditions of lien, even if the other party objects to its unintentional lien, it will not hinder the exercise of lien, so the invalid pledge cannot be converted into lien. China's Macao Civil Code transforms the invalidation of hierarchical ownership into * * * ownership. The same as Chinese mainland's hierarchical ownership system is the differentiated ownership system of buildings. Does Macao's transformation norm apply to Chinese mainland? The only living space of this system in Chinese mainland is aimed at "tubular buildings". However, with the reform of the housing system in Chinese mainland and the continuous prosperity of the real estate market, the "tube-shaped apartment building" gradually faded out of the historical stage, and this transformation system has little room for survival in Chinese mainland.

Second, the transformation of invalid civil act in creditor's rights law.

The Law of Creditor's Rights advocates autonomy of will, but contract behavior is still restricted by mandatory norms, so it needs some space to transform invalid civil behavior.

(I) Invalid Debt Commitment The commitment to pay off the debt to a third party requires the consent of the creditor. Without the consent of the creditor, the debt commitment is invalid, but whether it is a debt commitment or a third party paying off the debt, the third party helps the debtor to perform the debt to the creditor. These two civil actions pursue the same economic benefits. The purpose of asking the creditor to agree to undertake the debt is to prevent the debtor who has the ability to withdraw from the debt and replace it with a third person who has no ability to undertake the debt, so as to protect the interests of the creditor. Transferring to a third party to pay off debts eliminates the defect that civil litigation infringes on the interests of creditors. The debtor not only did not get rid of the debt, but also increased the security weight for creditors to realize their creditor's rights. For creditors, why not? So this transformation is allowed.

(2) When an invalid contract is converted into an appointment, it means that it is agreed to conclude this contract in the future. Although there is no clear stipulation on designation in Chinese law, its effect has been recognized in judicial practice. If this contract is invalid due to the lack of legal form or the non-delivery of the subject matter, this contract can be transformed into a similar civil act, but no similar civil act can be transformed into an appointment. Whether the appointment should be in the same form as this contract varies in different countries and regions. For example, Article 135 1 of the Italian Civil Code stipulates that the appointment must meet the formal requirements of this contract. Article 404 of the Civil Code of Macau stipulates that the agreement does not need to meet the formal requirements of this agreement. The influence of form on the effectiveness of civil acts has been discussed above. If the form is to protect the interests of the parties, it should not be mandatory. If the form is to protect the interests of the public, then the contract at this time is just an agreement. Whether this contract can be concluded or not is unknown whether the effectiveness of the appointment is compulsory negotiation or compulsory contracting, not to mention that this appointment has caused external interests. The effect of booking is only in the direction of this contract, but it is still far from this contract. Therefore, the appointment does not need to be formal, and this appointment can be converted into an appointment.

(3) If the lease term exceeds six months, it shall be in written form. If the parties fail to adopt a written form, it shall be regarded as an indefinite lease. German case law transforms invalid guarantee contracts into debt commitments. Medicus also agrees with "invalid guarantee" to a limited extent. Only when there are substantial elements of debt commitment, and the undertaker has his own direct economic interests, should the debt commitment be considered. The author believes that this transformation increases the burden of the parties and cannot be transformed. Debt commitment can be divided into exemption debt commitment and coexistence debt commitment. Exempted debt commitment makes the debtor get rid of the debt completely, and the undertaker independently supports the performance of the debt. Even if there are competing debts, the undertaker and the debtor are joint and several, that is, when the creditor's rights expire, the debtor and the undertaker do not perform the debts in order. The assumption of suretyship liability is based on the premise that the creditor requires the debtor to perform first, and the guarantor will bear the responsibility when the debtor fails to perform the debt. Therefore, transforming invalid guarantee into debt commitment increases the guarantor's responsibility and cannot be transformed.

Third, the conclusion

Due to the limited space of this paper, it may still be impossible to comprehensively and in detail elaborate the construction of the system of invalid civil behavior transformation. However, the author believes that the ultimate goal of this system is to safeguard the autonomy of the will, ensure the transaction safety of market activities and safeguard the interests of the innocent party, which is undoubtedly an unavoidable problem in the future development of China's civil law system. Our country should formulate the general system and specific rules of invalid civil behavior transformation as soon as possible, and improve the system of invalid civil behavior transformation.