证券监管规章影响合同效力中的公序良俗通道分析——以“公司上市挂牌中的对赌抽屉协议”效力为例

Analysis of the Judicial Channel of the Public Order and Good Customs to the Validity of Contracts in the Context of Securities Regulations——In the Example of the Validity of“VAM Drawer Contracts of Companies Seeking Public Listing”

限制公法对私法自治的介入是近代以来的民法共识。随着我国《民法典》的正式实施和《九民纪要》对民商事审判规则的统一,在进一步尊重民事法律行为意思自治原则的基础上,确定了行政规章通过公序良俗原则通道影响民商事法律行为效力的规则,且主要集中在以证券行业为代表的金融领域。但是在近年来的司法实践中,对于适用公序良俗原则的边界出现了割裂。以公司上市挂牌中的对赌抽屉协议的效力为例,违反了证券监管规章的具体规定或原则是否构成“违反金融安全、市场秩序”等公序良俗原则的边界模糊,导致判定合同效力的裁判案例中出现了结果两极化的现状。我国在此领域暂未形成类型化的审判规范,对于监管规章未列明禁止的情形要审慎突破民商事合同的形式审查,为证券行业创新发展留有空间。

Limiting the intervention of public law in private law autonomy has been the consensus of civil law since modern times.With the official implementation of the Civil Code of China and the unification of the rules of civil and commercial trials in the Minutes of the Nine People's Republic of China,on the basis of further respecting the principle of autonomy of the will of civil legal acts,the rules that affect the effectiveness of civil and commercial legal acts through the principle of public order and good customs have been determined,and are mainly concentrated in the financial field represented by the securities industry.However,in recent years'judicial practice,the boundaries of the application of the principle of public order and good customs have been split.Taking the effectiveness of the gambling drawer agreement in the listing of the company as an example,whether the violation of the specific provisions or principles of the securities regulatory regulations should constitute a violation of the principles of public order and good customs such as financial security and market order,and thus the current situation of polarization of results appears in the judgment cases of determining the invalidity of the contract.China has not yet formed a type of trial standard in this field.We should prudently break through the formal review of civil and commercial contracts,leaving room for the innovative development of the securities industry.