再论公务员违反禁止性规定订立营利性合同的效力——以学界通说和法院判决为评判对象

A Further Study on the Validity of Profit-making Contract by Civil Servant Breaching Prohibitive Legal Rules:Based on the Analysis of Academic Recognition and Court Judgments

依照学界通说和法院的绝大多数现行判决,《公务员法》第53条第14项规定对合同效力不生影响。该观点误解了公私法关系,合同法应在允许范围内为国家规制目标服务。将公务员违规订立营利性经营合同认定为无效,具有更明显的反对非法行为、隔断公务员与经济利益链接及实现立法目的的优势,且具有结果妥当性,能增加违法行为披露几率。基于我国国情,该类合同的效力应依客观标准统一认定为无效,与公务员是否滥用权力及耽误本职工作无必然联系。

According to the academic recognition and most court judgments,article 53 item 14 in the Civil Servant Law of PRC has no effect on the validity of contracts concluded,which misinterprets the relationship between public and private law for the Contract law should be in the service of the regulatory goal of public law in its possible scope.The judgment that takes these profit-making contracts by civil servants breaching legal rules as invalid displays more evident advantages to fight against illegal actions,block the interaction between civil servant and improper economic interests,realize the legitimate goal,achieve the desirable result and increase the rate of disclosing illegal actions.In view of our national conditions,these contracts should unanimously be taken as invalid in accordance with the objective standard and are unnecessarily related with the fact whether the involved civil servants have abused their public power or whether they have delayed their own work.