一般有效,例外无效:非金融机构企业之间借款合同效力的应然安排

The Validity of Loan Contract between Non-financial Enterprises

对合同效力的认定,是处理非金融机构企业之间借款合同纠纷时必须解决的问题。现行金融管理政策和司法实践对非金融机构企业之间借款合同效力的否定性评价,倒逼非金融机构企业之间的借款多以变异方式出现。但是,这种否定评价存在诸多值得商榷之处,相关司法实践也造成了一些法理困惑。"一般有效,例外无效"应是重构非金融机构企业之间借款合同效力制度的理性选择。

Concerning disputes over loan contracts between non -financial enterprises, we should determine the validity of such contracts in the first place. The current judicial practice and policies of financial management are negative evaluations on the validity of loan contracts between non - financial enterprises, resulting in the prevalence of such contracts in many other forms. However, negative evaluations against such contracts are not always as convincing as they appear to be, and certain jurisprudential confusions come into our mind during relevant judicial practice. As a result, the principle of ＂invalid in case of exceptions＂ should become the rationale throughout the reconstruction of the system evaluating the validity of loan contracts between non - financial enterprises.