限制契约自由视角下强制性规范与公序良俗条款的适用研究

《民法典》第153条规定了强制性规范与公序良俗条款的适用规则,此为结合限制契约自由的事前模式与事后模式适用之典型,应作体系化解读。协调两种模式在合同效力判定中的适用,合理划定以强制性规范为核心的事前模式适用范围,明晰强制性规范的适用边界。对于未被立法者明示性质的规范,应以任意性规范推定原则的适用为基础,在尊重当事人的意思自治前提下,由法院根据公序良俗原则发挥事后模式的补足作用,以期对合同效力作出清晰认定。

Application Rules of Mandatory Norms and Public Order and Good Customs from the Perspective of Restricting Freedom of Contract

Article 153 of the Civil Code stipulates the application rules of mandatory norms and public order and good customs clauses, which are typical of the application of the ex ante and the ex post models that combine restrictions on freedom of contract and should be interpreted systematically. To coordinate the application of the two models in determining the validity of contracts, the scope of application of the ex ante model with mandatory norms as the core is reasonably defined, and the boundary of the application of mandatory norms is clearly defined. Norms that are not explicitly stated by the legislator should be based on the application of arbitrary-norm presumption principle; on the premise of respecting the autonomy of the parties, the court should play the complementary role of the ex post model according to the principle of public order and good customs, with a view to making a clear determination of contract validity.