美国违反公共政策之合同类型探析

Categorization of Contracts Against Public Policy in US Law

美国合同法两次重述中将否定合同强制执行效力的事由从"违法合同"转变为"违反公共政策的合同",而具体的违反公共政策合同的类型始终是法学界的争论之一。对于违反公共政策的合同类型进行探析可以清楚得看出公共政策在司法实践中的内涵变化。从第一次合同法重述的违法合同论,到第二次合同法重述的公共政策说,经过实践的检验与分析,将违法合同涵盖于违反公共政策合同类型之中作为合同没有强制执行效力的缘由更为有效。这样的立法体系是避免我国合同无效制度中对强制性规定之含义的争议,以及解决适用违反法律与违反社会公共利益使合同无效时产生的问题的可行途径。

The two Restatements of contract in the US law have changed the illegal contract to the contract against public policy regarding to the contract without enforcement. But the categorization of the public policy is still worth discussing. From the illegal contract time to the time of contract against public policy, the experience and case study show that to include the illegal contract in the contract against public policy is a better way in the practice. This is also a good guide to the Chinese contract law legislation, which is helpful to solve the problem of defining mandatory provision, as well as to solve the dispute between applying the contract against laws rule with the contract against public interest rule.