| It is said that China’s legislation has always strictly stipulated the level of norms that can be used as the basis for determining the invalidity of a contract.The Judicial Interpretation 1 of the "Contract Law" also emphasizes this.However,in recent years,due to the fact that legislation in the financial and commercial fields are lagging behind and administrative supervision is the mainstay,there have been some exceptions in judicial practice,and judges have not strictly followed this legal logic to make the final calls.In some cases,the contract among the different parties did not comply with the regulatory regulations in specific fields,which made the judgment of the contract violated the administrative regulations so that to be invalid based on the “social public benefit” clause in Article 52,Item 4 of the Contract Law.Different from other industry,there is a natural contradiction between commercial innovation and administrative control in the financial and commercial area,and the cases of such special adjudication paths are mainly concentrated in the financial and commercial fields.The emergence of this kind of adjudication path has triggered discussions between academic and practical circles.At the same time,the "Minutes of the National Court Civil and Commercial Trial Work Conference" issued by the Supreme People’s Court in 2019 also expresses this kind of adjudication practice in the financial and commercial fields to a certain extent.We may wonder that in judicial practice,can the rules and regulations affect the judge’s judgment on the validity of the contract to a certain extent? There are disputes about how the rules can affect the validity of the contract in a more reasonable way.If the influence of rules on the judgment of contract validity is completely excluded,and from the perspective of legal and judicial interpretations,it is recognized that the contract that violates the rules is valid,and the behavior of the parties is only restricted at the level of subsequent contract performance.On the surface,it can indeed make the financial and commercial fields to maintain the uniformity of the judgments in the judgment of similar cases,and can also avoid unnecessary disputes about state control and interference in private autonomy,but this kind of judgment path may actually be difficult to give full play to the real rules.Utility may even cause many other problems such as social dishonesty.Another approach is to use the previous "Contract Law" Article 52(3)of "covering illegal purposes in a legal form" as a medium to invalidate contracts that violate the rules because they meet the "illegal purposes" mentioned in the preceding paragraph.But in fact,after the promulgation of the "General Principles of the Civil Law" and the "Civil Code",the judgment of the illegal purpose of the parties to the contract still requires the judge to consider whether it violates the mandatory provisions of laws and regulations or whether it violates the principles of public order and good social manners in specific cases.This method is more complicated than judging directly in accordance with laws and regulations or public value.If the judge believes that a violation of the rules means a violation of its superior law or administrative regulations and the contract is deemed invalid,this approach also has many problems.The first thing that needs to be considered is whether the establishment of the regulation is an abstract authorization of a higher-level law or a specific authorization.Even if there is an authorization,it is necessary to consider whether the violation of the mandatory provisions of the upper-level law or the administrative mandatory provisions.In addition,for regulations of different types of authorization,if it is believed that the regulations that can affect the validity of the contract need to be authorized by the specific provisions of the upper law,it seems that the requirements are too strict,and the judgment is difficult to have universal applicability;if it is considered that the rules that can affect the validity of the contract need to have a higher law It seems that the requirements for abstract authorization are too loose,because most of the general regulations can be considered as having the abstract authorization of the upper law,which will inevitably lead to a large number of regulations affecting the judge’s judgment on the validity of the contract.The last approach is to consider that a contract that violates the rules can be determined to be invalid based on the "damage to the public interest" clause of Article 52,Item 4 of the original "Contract Law".Although this approach puts forward higher requirements for the judge’s reasoning,the connotation and extension of social public interest are also clear in different cases at different times,but compared with other approaches,the social public interest is the necessary boundary for the autonomy of private law.This is generally recognized.After the "Civil Code" was promulgated,the "Social Public benefit" clause in Article 52,Paragraph 4 of the original "Contract Law" was deleted,and Article 153,Paragraph 2 of the Code was replaced with the expression "Public Order and Good Customs".Focusing on the financial and commercial fields,it is necessary to clarify the relationship between "public order and good customs" and "social public benefit" when clarifying that the "public order and good customs" clause can be used as a judicial channel for judges to judge the validity of the contract that violates the rules.In this case,we can try to categorize the "public order and good customs" that may be violated in the financial and commercial fields.However,the application of principle clauses should always be cautious.This is also stated in the aforementioned provisions of the "Minutes of the National Courts Civil and Commercial Trial Working Conference".Judges should first clarify the connotations and extensions of "public order and good customs" in specific situations when making judgments and reasoning.The application of principles should be used to fill legal loopholes when there are no clear provisions in the law,and can be restricted in application procedures.At the same time,the judiciary should maintain the recognition of regulatory rules. |
