论《合同法》中的公共利益——以合同无效事由为视角

On the Public Interest of the Contract Law

我国《合同法》第52条将社会公共利益作为合同无效事由,存在诸多问题。从政治哲学角度看,社会公共利益的内涵及其表达方式历经嬗变;在合同法中,国家利益与社会公共利益是一对同质概念;作为公共利益的渊源,《宪法》与《合同法》的规制既体现出统一性,也表示出差异性。随着社会发展,公共利益对意思自治的限制越来越多,但这并不意味其衰落或者死亡,反而,以公共利益作为民事行为的效力边界,会使得合同法的私法地位更为巩固。

The 52nd clause of the Contract Law has many problems that the social public interest is an invalid matter of the contract. From the point of view of the political philosophy, social public interest connotation and its expression has changed for many time ; the national interest and the social public interest take a pair of homogeneity concept; as the origin of the public interest, the Constitution and Contract Law have the unity and the opposite. Along with the social development, the limitation of the public interest are getting more and more, but this did not mean its decline or the death, instead, by the boundary of the civil behavior of the public interest, the civil law status of the law of contract will be more consolidated.