法秩序统一原理下公序良俗条款的司法适用

The Judicatory Rules of Public Order and Good Custom Clauses in Civil Cases under the Principle of Unification of Legal Order

在民事案件中如何判断法律行为是否构成违背公序良俗而无效,一直是困扰理论界与实务界的难题。“天策诉伟杰案”提供了基于法秩序统一原理解决我国公序良俗适用困惑的新思路。从公共秩序和善良风俗概括而来的公序良俗涵盖了违法无效与悖俗无效的内容,其规范形式可以分成法令型公序良俗条款和裁判型公序良俗条款。依照现代行政法理论,公序良俗条款的适用本质上是为公共利益否定法律行为效力,它的适用要求是目的与手段关系符合比例原则。在具体操作上,应该针对两种公序良俗条款确立不同的司法适用技术:适用法令型公序良俗条款,必须证成法令管制目标正当、适当,以及法律行为无效满足最小侵害要求;适用裁判型公序良俗条款,必须证成裁判管制目标正当以及法律行为无效而符合利益均衡要求。

It has been a difficult problem for both theoretical and practical areas to judge the validity of legal acts which violating the public order and good customs in civil cases. A new way was provided by the "Tiance V. Weijie" case, which is to solve this problem based on the principle of unification of legal order. The invalidity of legal acts which violating the public order and good customs are composed of the Invalidity caused by illegal acts and the invalidity caused by acts against customs, and the normative form can be divided into statutory type public order and good customs and judgment type public order and good customs. According to the theory of modern administrative law, the essence of applying the provisions of public interest is that the judge can determine the invalidity of civil legal acts for the public interest. Therefore, the applicable requirement of this kind of provisions is that the relationship between the purpose and the means conforms to the principle of proportionality. In the concrete operation, we should establish different judicatory application technology according to two kinds of public order and good custom clauses. To apply the statutory type public order and good customs, it is necessary to prove that the objectives of statutory control are justified, appropriate and invalidity of legal acts meets the minimum infringement requirement. To apply the judgement type public order and good custom clause, it must be proved that the goal of judgment control is justified and the invalidity of legal acts meets the requirement of interest balance.