合同编通则解释之再解释

Reinterpretation of the Interpretation of the General Provisions of Contract Law

《最高人民法院关于适用<中华人民共和国民法典>合同编通则若干问题的解释》(法释[2023]13号)比较系统地解释了《民法典》合同编通则,颇具贡献:明确了合同条款中词句的通常含义之确定进路;丰富了预约规则,包括于具备充分且必要条件时架起违反预约责任与违反本约责任之间的桥梁;就格式条款的规格与其是否受当事人约定的影响进行明确表态;由区分效力性强制规定与管理性强制规定到“原则——例外”的分析架构;违背公序良俗原则应当在裁判文书中充分说理。但其也存在值得商榷之处,如违背法理;泾渭不明,脉络紊乱;本为法律漏洞,却反面推论,而非填补漏洞,法律方法偏离,后果失当;识别强制性规定的标准摇摆不定。

The Interpretation by the Supreme People's Court of Several Issues Concerning the Application of the General Provisions of the Contracts Book of the Civil Code provides a relatively systematic explanation of the General Provisions of the Contracts Book of the Civil Code,which is quite contributory.However,there are also debatable points.For example,some provisions are contrary to legal jurisprudence;some provisions are logically unclear and disorganized;in some places there are legal loopholes,but the interpretation makes an opposite inference rather than filling them,which deviates from the legal methodology and causes inappropriate consequences;and the criteria for identifying mandatory provisions are wavering.Determining the"common meaning of words and sentences"in contractual terms often requires consulting a dictionary.However,in the background of the rapid development of society and the constant development and updating of people's understanding,the dictionary interpretation must no longer be relied upon.Therefore,the relevant provisions of laws,administrative regulations,rules and other regulatory documents,as well as the relevant theories of the law,are necessary,at least in some cases,for revealing the meaning of contractual terms and sentences.Should words,sentences and clauses be interpreted according to their literal meaning or with a focus on their substance?Conclusions should be drawn according to different circumstances.The determination of whether a document is a preliminary contract should not be confined to the name used for the document,but should be based on the content of the declaration of will.Most framework contracts are not preliminary contracts.One of the reasons is that,the preliminary contract loses its effect upon the conclusion of the contract,whereas in the framework contract-specific contract model,the framework contract does not lose its effect upon the conclusion of the specific contract.They must be viewed as a whole when interpreting the contracts.Where the preliminary contract has all the elements of a contract and is enforceable,it is appropriate to adjudicate the formation of the contract outright.Article 9,paragraph 1,of the Interpretation by the Supreme People's Court of Several Issues Concerning the Application of the General Provisions of the Contracts Book of the Civil Code completely excludes the principle of autonomy of will from the field of the recognition and legal application of standard terms.This does not fit well with the principle of encouraging transactions.If"the parties have unequivocally agreed that the contract clauses are not standard terms",there is no statutory reason for invalidity,and the agreement has not been revoked by the parties,then the principle of autonomy of will should be implemented.The first sentence of Article 17,paragraph 2,of the Interpretation by the Supreme People's Court of Several Issues Concerning the Application of the General Provisions of the Contracts Book of the Civil Code,which refers to"provide sufficient reasons in the adjudicative document",must not be understood as a two-stage argumentation in which the violation of State Council departmental rules,local regulations or rules of local governments is cited as the reason for directly declaring the contract contrary to the public order and good morals.Rather,it should draw a conclusion that the contract is contrary to public order and good morals.