Abstract: The “distinction theory” advocates that the “mandatory provisions” in Article 153 (1) of the Chinese Civil Code do not include “authority provisions”. This theory originated in Germany and has historical and practical reasons for its emergence. It has gradually become a powerful force in China since its introduction into the country. However, there are many misunderstandings among Chinese scholars about the “distinction theory”. The essence of the “authority provisions” still lies in restricting autonomy of will, and the “distinction theory” still has problems such as conceptual dislocation and lack of precise differentiation standards, which have become its “Achilles heel”. The “mandatory provisions” in Article 153 Paragraph 1 of the Chinese Civil Code should be interpreted broadly based on the “unified theory”, but the abstract perspective should be revised to a specific perspective. The “unified theory” not only avoids tedious and unsolvable conceptual operations, but also has three major advantages: providing normative basis, increasing the flexibility of contract effectiveness evaluation, and preventing legal evasion. Article 18 of the Interpretation of the General Principles of the Book on Contract in the Chinese Civil Code should be understood as a declaration of the priority application rules of special laws, rather than the adoption of the “distinction theory”. 

Key Words: Mandatory Provisions; Authority Provisions; Distinction Theory; Unified Theory; Private Law Autonomy 

Author: Cai Rui, assistant research fellow, CASS Institute of Law;

Source: 1 (2025) China Law Review.