论违背公序良俗合同无效后的返还后果

Restitution in Unenforceable Contracts Violating Public Policy

《民法典》对违背公序良俗合同的后果沿用了《民法总则》与《合同法》关于合同无效后应当返还的规定,而应当返还规则的社会妥当性已遭到质疑,相应的司法补救也难以治愈。应当返还规则的问题症结在于不区分无效原因,缺少背俗合同返还规则的固有法理。在社会公共利益与当事人利益之间法益均衡的背俗合同返还规则应当是一般拒绝、例外允许。一般拒绝返还旨在惩戒违背公序良俗的合同当事人与避免否定合同无效的评价。例外允许返还发生在给付人遭受的利益剥夺与背俗程度不相称的情况下,此时可基于当事人之间背俗程度的差异,并结合不返还对于社会公共利益的危害,在个案中允许返还。民法典时代背俗合同返还的认定可基于《民法典》中的公序良俗原则和应当返还规则,在解释论上实现一般拒绝、例外允许。

According to Civil Law Code of China, there must be restitution when contracts violate public policy, which follows the rules of unenforceable contracts in General Provisions of the Civil Law of China and Contract Law of China. In legal practice, these restitution rules are socially improper and hard to litigate by judicial interpretation. The key point is that existing restitution rules lack the rationale behind the unenforceable contracts on the ground of public policy. To balance public interests and private interests, when contacts conflict with public policy, the restitution claims should be denied generally and only in some particular situations could the claims be allowed. The justification of "generally denied" rules is punishing contractors violating public policy and avoiding stultifying the refusal to enforce this type of contracts. As for "exceptionally allowed", when a party suffers a forfeiture that is disproportionate in relation to the contravention of public policy, his or her restitution claim might be allowed. These exceptions depend on factors such as the extent of the contravention and the situation contrary to public interests. By interpreting public policy principles and restitution rules, "generally denied" and "exceptionally allowed" can be effectuated in Civil Law Code of China.