违反中国水运许可法规之合同效力研究

Validity Analysis of Contracts Nonpermissible to Domestic Rules/Regulations on Waterway Transportation

经营主体违反水路运输许可法规而订立运输合同的效力存在颇多争议。当前国内外法律具有强烈的鼓励交易趋势,轻易不应认定合同无效。未经过政府行政审批从事水路运输应定性为超出经营范围,由此签订的合同不属于"违反国家限制经营、特许经营以及法律、行政法规禁止经营"而无效的合同。所订立的运输合同违反"行政法规强制性规定"时的效力还需结合具体行为违反公序良俗的程度、相对方利益保障和社会成本节约综合判断。

Disputes have been increasing in respect to the validity of the contracts which were concluded by those parties who violated the domestic rules/regulations on waterway transportation. Nowadays the domestic and foreign legislations both tend strongly to extend trade, and those contracts are scarcely identified as invalid. Waterway freight transportation is not listed in the state-restricted scope of business for any domestic shipping company, though the mature of a waterway transportation contract which was concluded without government＇s administrative examination/approval can be ascertained to be beyond the legal scope of business. The contract is usually regarded as valid since it is not in such invalid cases as ＂breaching the state restriction on the scope of several businesses and franchises or other businesses banned by mandatory provisions of administrative regulations＂. Determining the validity of a waterway transportation contract that is ＂violating the mandatory administrative regulations＂ is to be done taking account of the provisions stipulated in combination with the actual procedure accepted through common practice, both parties＇ interest and social cost savings.