《合同法》第52條第5項評注

Commentary to Article 52 (5) of Contract Law

《合同法》第52條第5項規定，違反法律、行政法規強制性規定的合同無效，《合同法解釋一》第4條明確將無效依據限制於全國人大及其常委會制定的法律與國務院制定的行政法規，排除地方性法規與行政規章；《合同法解釋二》第14條將“強制性規定”限縮為“效力性強制性規定”；《民商事合同案件指導意見》第15條、第16條則在確立效力性與管理性強制規定二分格局的基礎上為之提供基本判准。提高法源位階之舉固然未必值得贊許，二分格局更是從概念、判准與司法適用各方面均製造混亂。《合同法》第52條第5項的準確適用，關鍵在於探尋規範意旨。

Under Article 52 (5) of the Contract Law of the People's Republic of China, a contract is void, provided that it violates the mandatory provisions of laws and administrative regulations. Article 4 of the Interpretation I of the Supreme People's Court of Several Issues concerning the Application of the Contract Law of the People's Republic of China explicitly limits the legal sources invalidating a contract to (a) the laws enacted by the National People's Congress and its Standing Committee, and (b) the administrative regulations formulated by the State Council, excluding local regulations or administrative rules. Moreover, Article 14 of the Interpretation II of the Supreme People's Court of Several Issues concerning the Application of the Contract Law of the People's Republic of China further confines the term 'mandatory provisions' as mentioned in Article 52 (5) of the Contract Law to 'the mandatory provisions on validity'. Likewise, Articles 15 and 16 of the Guiding Opinions of the Supreme People's Court on Several Issues concerning the Trial of Cases of Disputes over Civil and Commercial Contracts under the Current Situation intends to draw a distinction between mandatory provisions on validity and mandatory provisions on administration. It is suggested, in this paper, that (a) it is questionable to set a higher bar for legal sources invalidating a contract, and (b) the dichotomy between mandatory provisions on validity and mandatory provisions on administration also creates confusions in terms of the concepts, criteria and judicial practice. To properly apply Article 52 (5) of the Contract Law, however, the key is to explore the normative intent.