射幸合同合法性问题研究

Study on Legality of Aleatory Contract

自由是合同法的核心价值,限制自由要有充分的理由。在射幸合同问题上,限制其自由的理由主要是:不得严重损害他人和社会公共利益,不得严重损害当事人自身的利益。这既是有限的柔性家长主义的需要,也是尊重习俗和习惯法的需要。具体来说,对于对抗风险型射幸合同与激励型射幸合同,要尽量保护;对于经营性射幸合同,要严加控制,实行特许经营;对于其他类射幸合同,要在考虑习俗和习惯法之后,区别对待。

The restraint of contract freedom needs good reasons as it is the core value of contract law. As to aleatory contract, the main reason to limit the freedom is that aleatory contract can not damage the interests of others or public interests, or even the interests of the party seriously. This not only is the requirement of limited paternalism, but also is essential to respect the customary law. Specifically, the anti-risk aleatory contract and inspirational aleatory contract should be protected; the aleatory contract for profit should be controlled strictly, the franchising system should be introduced; and other types of aleatory contract should be treated differently based on the customs and customary law.