快递末端网点经营权转让合同之效力

The Validity of the Contract of Transferring Management Rights of Express Service Outlets

民事法律行为“违反法律、行政法规的强制性规定”无效之规定,为公法介入私法自治提供了管道。《邮政法》第51条第1款以强制性规定,确立了经营快递业务之行政许可制度。判断某行为是否违反该条款,应同时满足两项构成要素:一是未经许可,一是经营快递业务。对该条款构成要件要素的解析和快递末端网点所涉及事实要素的类型化归整表明,快递末端网点经营权转让合同之法律行为,并不能恰当地归入邮政法意义上的“经营快递业务”之概念陈述。质言之,案涉合同之事实与该条款之间,互不恰当满足。故快递末端网点经营权转让合同,并不违反该条款之强制性规定。据此不能援引该条款来介入私法自治,进而否定此类案型合同之效力。

The rule that the civil law behavior will be identified invalid if it violates the mandatory provisions of the laws and administrative regulations, provides a channel for the public law to intervene in the autonomy of private law and freedom of contract.Article 51(1) of the Postal Law has established the institution of administrative license to operate express service.In the disputes of the contract of transferring management rights of express service outlets, whether the disputed behavior should be held as violating Article 51(1) of the Postal Law can be determined according to both constituent elements of the norms, which one is “without license to operate express service” and “operating express service”. Through interpreting Article 51(1) of the Postal Law, and extracting the elements of the facts referring to the express service outlets, it can be concluded that the civil law behavior as well as the disputed contract should not be subsumed within the concept scope of “operating express service” in the Postal Law. Intrinsically, the facts referring to the disputed contract and the norms referring to the Article 51(1) of the Postal Law could not just meet each other in terms of legal application. Therefore, the disputed contract should not be held as violating the mandatory provision of Article 51(1) of the Postal Law. So the mandatory provision of Article 51(1) of the Postal Law should not be referenced to intervene in the field of private law autonomy and denying the validity of the disputed contract.