合同編通則解釋之再解釋

Reinterpretation of the Interpretation of the General Provisions of Contract Law

《最高人民法院關於適用〈中華人民共和國民法典〉合同編通則若干問題的解釋》（法釋[2023]13號）比較系統地解釋了《民法典》合同編通則，頗具貢獻：明確了合同條款中詞句的通常含義之確定進路；豐富了預約規則，包括於具備充分且必要條件時架起違反預約責任與違反本約責任之間的橋樑；就格式條款的規格與其是否受當事人約定的影響進行明確表態；由區分效力性強制規定與管理性強制規定到“原則——例外”的分析架構；違背公序良俗原則應當在裁判文書中充分說理。但其也存在值得商榷之處，如違背法理；涇渭不明，脈絡紊亂；本為法律漏洞，卻反面推論，而非填補漏洞，法律方法偏離，後果失當；識別強制性規定的標準搖擺不定。

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.