法律規避行為及其裁判方法

The Legal Methods in the Judicial Decisions of Law-Evasion Transactions

我國法院在審理投融資領域的避法行為時已做到將其與虛偽表示相區別，承認避法行為的價值中性，通過歸類法對不同避法行為分別處理。歸類處理的過程中隱含著法律行為解釋、法律解釋或類推適用。但裁判文書對解釋理由經常欠缺充分說明，隨意處理各種解釋方法的位階關係；類推適用隱晦不清，有擴大化甚至濫用的危險。處理虛偽表示和避法行為均借助“以合法形式掩蓋非法目的”、“名為實為”、“變相”等術語，容易將事實認定和法律適用混為一談，模糊或掩蓋了法律方法。法律方法上的模糊和紊亂，極大地削弱了法院對避法行為進行實質性審查和判斷的理性基礎，削弱了個案裁判和規則本身的確定性和可預見性。

In the cases involving transactions of investing and financing, China’s courts usually distinguish between the evasion of law and the disguised actions, and do not necessarily consider the former to be illegal action. Courts make different decisions based on the types of specific evasion-of-law transactions. When identifying and characterizing the evasion-of-law actions, courts usually employ several methods, such as interpretation of contract, interpretation of law, analogical reasoning and so on. However, judges often fail to adequately articulate their reasons for their interpretation of law or contract in their judicial decisions. Judge’s. analogical reasoning also usually operates inexplicitly which could be found in the details of a decision. It seems easy for courts to misuse the analogizing method. Moreover, the similar terms or concepts, such as “term unfit for substance” (ming shi bu fu), “in disguised form” (bian xiang) and “to disguise illegal intention with legal form” (yi hefa xingshi yangai feifa mudi), are used to describe both the evasion of law and the disguised actions. Misuse of the terms further confuse the application of law and the question of fact in a case, and also creates troubles for people to accurately understand the legal methods in a decision. The methodological confusion significantly weakens Courts’ rational basis of reviewing those evasion--of--law transactions, and also decreases the stability and foreseeability of their decisions on evasion-of-law transactions.