《合同法》第52条第5项评注

Commentary to Article 52(5) of Contract Law

《合同法》第52条第5项规定,违反法律、行政法规强制性规定的合同无效,《合同法解释一》第4条明确将无效依据限制于全国人大及其常委会制定的法律与国务院制定的行政法规,排除地方性法规与行政规章;《合同法解释二》第14条将"强制性规定"限缩为"效力性强制性规定";《民商事合同案件指导意见》第15条、第16条则在确立效力性与管理性强制规定二分格局的基础上为之提供基本判准。提高法源位阶之举固然未必值得赞许,二分格局更是从概念、判准与司法适用各方面均制造混乱。《合同法》第52条第5项的准确适用,关键在于探寻规范意旨。

Under Article 52(5) of the Contract Law of the People's Republic of China,a contract is void,provided that it violates the mandatory provisions of laws and administrative regulations.Article 4 of the Interpretation I of the Supreme People's Court of Several Issues concerning the Application of the Contract Law of the People's Republic of China explicitly limits the legal sources invalidating a contract to(a) the laws enacted by the National People's Congress and its Standing Committee,and(b) the administrative regulations formulated by the State Council,excluding local regulations or administrative rules.Moreover,Article 14 of the Interpretation II of the Supreme People's Court of Several Issues concerning the Application of the Contract Law of the People's Republic of China further confines the term 'mandatory provisions' as mentioned in Article 52(5) of the Contract Law to 'the mandatory provisions on validity'.Likewise,Articles 15 and16 of the Guiding Opinions of the Supreme People's Court on Several Issues concerning the Trial of Cases of Disputes over Civil and Commercial Contracts under the Current Situation intends to draw a distinction between mandatory provisions on validity and mandatory provisions on administration.It is suggested,in this paper,that(a) it is questionable to set a higher bar for legal sources invalidating a contract,and(b) the dichotomy between mandatory provisions on validity and mandatory provisions on administration also creates confusions in terms of the concepts,criteria and judicial practice.To properly apply Article 52(5) of the Contract Law,however,the key is to explore the normative intent.