合同自由与公共政策——《第二次合同法重述》对违反公共政策合同效力论的展开

The Balance of Public Policy and Freedom of Contract

任何国家都面临着如何平衡公共政策与合同自由间紧张关系的问题。就违反公共政策的合同,《第二次合同法重述》原则上是不予强制执行和恢复原状的,但并非一出现违反公共政策的情形,合同就必然失去强制力。《第二次合同法重述》通过引入利益衡量的方法为违反公共政策合同的效力判断作了精细规范;同时又通过设置缓和技术对因违反公共政策而不得强制的合同予以充分救治,以此来最大限度地协调当代社会所面临的公共政策与合同自由间的矛盾。

How to balance the tension between public policy and freedom of contract is a common problem faced by every country. On the ground of public policy, The Restatement （Second） of Contracts provides that some kinds of promises or terms contained in a contract are unenforceable and the court shall not grant a wrongdoer who concluded a contract in violation of public policy restitution of a benefit conferred upon the other party. However, it is not necessary that once a contract contradicts certain public policy, it becomes unenforceable inevitably. The Restatement （Second） of Contracts, through introducing the method of interests - weighing and the technology of mitigation, has provided detailed rules for deciding the validity of a contract in violation of public policy and supporting transactions freely entered into by parties concerned. In this way, the tension between public policy and freedom of contract faced by today＇ s society can be coordinated to the maximum.