論合同效力類型體系的重構——認真對待合同的法律約束力

On the Reconstruction of Type System for Contractual Legal Binding Force: Take the Legal Binding Force of Contract Seriously

現有的合同效力類型體系不夠科學，有必要重構。合同的效力類型應當劃分為三類五種。合同有效（廣義）包括依法成立的合同的有效（狹義）和可撤銷合同的有效，合同有效系指合同有法律約束力。合同效力待定實為合同的法律約束力待定。合同無效（廣義）包括合同絕對無效（狹義）和合同相對無效，合同無效系指合同無法律約束力。此“三類五種體系”始終以合同的“法律約束力”為基點，與現有的以合同“生效”為基點的合同效力類型體系均截然有別。該體系還表明，合同有效乃合同生效的必要前提。我們應當將合同有效從合同生效的長期桎梏中解放出來，應當承認合同有效乃介於合同成立與合同生效之間的獨立的效力層次。

It is necessary to reconstruct the type system for contractual legal binding force, because it is not scientific enough at present. The system should bedivided into three categories or five kinds. Valid contracts (in a broad sense) have legal binding force, and include valid contracts (in a narrow sense) established according to law and contracts which can be revoked. Uncertain contracts have legal binding force which is pending. Invalid contracts (in a broad sense) have no legal binding force, and include absolutely-invalid contracts (in a narrow sense) and relatively-invalid contracts. Such a three-category or five-kind system has taken legal binding force as basis for reconstruction, and differs from the present type systems which have taken the legal effect as basis for construction. According to this new system, contract legal binding force comes before contract legal effect, so we should liberate the former from the latter, and admit that the former, which differs from either contract establishment or contract effect, is an independent layer after contract is established and before it takes effect.