违反规范性文件合同效力判定的动态系统论

Dynamic Systematics for Determining the Validity of Contracts in Violation of Normative Documents

我国《民法典》第153条继承《合同法》第52条的精神要义,将强制性规定法源位阶限定在法律行政法规范围内,学界对合同违反规范性文件系违法无效或悖俗无效存在理论争议,实务界不乏直接或间接突破法源位阶的案件,法官犹疑的立场不利于统一司法裁量标准。学界不应过度纠结法源位阶,而应转向规范性文件与合同效力关系的“动态构筑”:一是动态系统论跨越了要件和效果两个侧面,以不伤害原理与契约自由原理构成的内在体系为基础,抽取出规范性文件性质、合同无效必要性以及契约自由三个要素,依要素满足程度、要素间协动机制综合判定合同效力,同时借助学说理论和实践积累得以补足;二是通过预先限定的三要素维系动态评价的体系性,结合结论合理性论证,能够有效限制法官主观恣意的评价空间。

The norms of contract nullity are a key area of concern in China's civil legislation.Article 153 of the civil code continues the provisions of article 52 of the contract law,the law and administrative regulations outside the normative documents are excluded from the invalidity of the contract basis for decision.2023,December 4,the supreme people's court issued"on the application of the civil code of the People's Republic of China,the general provisions of the contract on a number of issues of the interpretation",but on the normative documents and the effectiveness of the contract of the relationship between the word.Reviewing the transmutation of the private law effect of the normative documents and the current situation of judicial decisions,it can be seen that:firstly,there is always the theoretical controversy of the legal source of the order of the invalidity of the law and the invalidity of the custom;secondly,the judge in the mandatory nature of the law is faced with a number of dfficulties in the interpretation of the application of the law.Dynamic system theory for people to solve the problem of normative documents and contract validity provides an alternative,Dynamic system theory breaks through the cognitive obstacles of the rule model,so that people are no longer obsessed with the completeness of the constituent elements of the source of law,which is based on the inherent system constituted by the principles of the law,carrying the elements of the evaluation of the adequacy of the principles of the law,and the judge carries out the interpretation of the law and legal discovery in the framework provided by the basic evaluation method and then determines the legal effect,specifically,from the principle of non-injury extracted from the nature of the normative documents elements,the contract invalid necessity elements,as well as the freedom of contract as the principle of the law of the elements of the composition of the three elements of the principle of the law to meet the degree of the law and the elements of the concomitant mechanism between the contract validity,and through the pre-qualification of the three elements of the system of dynamic evaluation system.The nature of the contract.In short,it is a game of the nature of the normative document(F1)threshold+the necessity of invalidity of the contract(F2)threshold and the freedom of contract(F3)threshold.In the future,the judge to determine the violation of the normative documents of the contract effect around the Civil Code Article 153 and the relevant judicial interpretation as the center,The introduction of dynamic systems theory is intended to provide a methodological dimension to the practical path,this paper advocates,is not in the legislative level to take the dynamic system theory to construct the legal system,in the field of weak value judgement,the elements of the effect model can solve the majority of cases in the life of the community,to maximize the stability of the law and predictability.In the field of strong value judgment,the value judgment guided by dynamic system theory is the continuous extension of legal norms to the life world,and the best choice to face the complex social environment with ease.Admittedly,the path of determining the validity of contracts in violation of normative documents under the guidance of the dynamic system theory is an exploration or a preliminary attempt,which is distilled from specific cases and constantly verified in specific cases in future practice to gradually reduce the error of adjudication under the guidance of the dynamic system theory.