Preface
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【Introduction】
Paragraph 2 of Article 153 of the Civil Code of the People's Republic of China stipulates that civil juristic acts that violate public order and good customs are invalid. The issue of the validity of civil juristic acts in the course of civil activities is a very important issue in civil trial activities, and the legal consequences of validity and invalidity are also completely different, and even a series of disputes will arise. It is also the first time that "public order and good customs" has been cited in a specific article of the Civil Code of the mainland, and whether it violates public order and good customs is an important factor in judging the validity of civil legal acts. However, whether it violates public order and good customs is obviously subjective and discretionary, which makes it difficult to form a unified objective standard in judicial practice, and if this clause wants to achieve its legislative purpose of regulating the daily civil activities of the public and guiding the public's life, it is necessary for the public to clearly know the applicable standards of the rules under the clause, and then have a clear expectation of the validity of its civil acts. This article is to dissect the core legal concept of "public order and good customs", seek the rules and boundaries of judicial application of the provisions of "contrary to public order and good customs", and ultimately achieve the goal of unifying judicial adjudication and people's lives.
【Legal Provisions】
Civil Code of the People's Republic of China
Article 8: Civil entities engaging in civil activities must not violate the law and must not violate public order and good customs.
Article 10: The handling of civil disputes shall be in accordance with the law; where the law does not provide for it, custom may be applied, but it must not violate public order and good customs.
Article 143:Civil juristic acts that meet the following conditions are valid: (1) the actor has the corresponding capacity for civil conduct, (2) the expression of intent is genuine, and (3) it does not violate the mandatory provisions of laws and administrative regulations, and does not violate public order and good customs.
Article 153:Civil juristic acts that violate the mandatory provisions of laws and administrative regulations are invalid. However, the mandatory provisions do not lead to the invalidity of the civil juristic act. Civil juristic acts that are contrary to public order and good customs are invalid.
Interpretation of the Supreme People's Court on <中华人民共和国民法典>Several Issues Concerning the Application of the General Principles of Contracts
Article 17: In any of the following circumstances, the people's courts shall find the contract invalid in accordance with the provisions of paragraph 2 of article 153 of the Civil Code, although the contract does not violate the mandatory provisions of laws or administrative regulations: (1) the contract impacts national security such as political security, economic security, or military security; (2) the contract violates social and public order such as impacting social stability or the order of fair competition, or harming the public interest; (3) the contract deviates from social morality, family ethics, or violates good customs, such as detrimental to personal dignity. When determining whether a contract violates public order and good customs, the people's court shall be guided by the Core Socialist Values, comprehensively consider factors such as the parties' subjective motives and the purpose of the transaction, the intensity of supervision by government departments, the frequency of similar transactions by the parties within a certain period of time, and the social consequences of their conduct, and fully explain the reasoning in the judgment documents. Where the parties genuinely conduct transactions for the needs of their lives, and do not have a major impact on social and public order, and do not affect national security, nor do they violate good customs, the people's court shall not find that the contract is invalid.
1. Illegality takes precedence over vulgar invalidity, and vulgar invalidity is a supplement to the rules of illegality and invalidity
Article 153 of the Civil Code of the People's Republic of China stipulates that: "A civil juristic act that violates the mandatory provisions of laws and administrative regulations is invalid, except where the mandatory provisions do not cause the civil juristic act to be invalid." At the same time, civil juristic acts that are contrary to public order and good customs are also invalid. This provision classifies the invalidity of civil juristic acts into two categories: one is invalid if it violates the mandatory provisions of laws and administrative regulations, referred to as "illegal invalidity", and the other is invalid if it violates public order and good customs, referred to as "invalid against customs".
When determining the validity of a civil juristic act, it should first be judged whether it is "illegal and invalid", because laws and administrative regulations are more objective in terms of rules, and laws and administrative regulations have clearly regulated acts that are seriously contrary to customs and invalidity, as the saying goes, the law is the minimum morality, and if the legal provisions have clearly defined a civil act as an illegal act, then there is no need or need to evaluate whether the act violates public order and good customs. In addition, as mentioned above, the invalidity of vulgarity is more abstract than the application of illegal invalidity, and even extrajudicial morality, which is more uncertain.
To sum up, as to whether a civil juristic act is invalid, the first thing that should be judged is whether it is illegal, and then when judging whether it is unconventional, the premise for applying "unlawful and invalid" must be that there is no "illegal invalidity". It can be said that the rule of perverse invalidity is a supplement to the rule of illegality and invalidity.
2. The rule of invalidity of vulgarity should clarify when it is the basis for evaluating conduct
Just as the evaluation criteria and applicable rules for behavior after the promulgation of a law, before the promulgation of a law, before the promulgation of a law, and after the promulgation and implementation of a law are completely different, both law and morality are constantly evolving, in other words, dynamic. For example, as the legal proverb goes, "the law does not apply retroactively", different legal consequences may be obtained by choosing different times as the evaluation basis for whether a civil act is unconventional and invalid. And the most common is the difference between when the act is carried out and when the act is effective.
The use of "when the act is carried out" as the evaluation basis is the most common time basis for evaluating the effectiveness of civil acts. For example, in order for the child to obtain a Beijing hukou, Ms. Liu negotiated a "fake marriage" with Mr. Li and signed the Marriage Conclusion Agreement, stipulating that Ms. Liu would pay Mr. Li a lump sum of 200,000 yuan.
For some civil acts that may not take effect at the time of implementation, the evaluation basis cannot be used as the basis for evaluation, but "when the act takes effect" should be used as the evaluation basis, and the most representative is the will. We all know that the will officially takes effect after the death of the testator, and Lao Wu made a will to give all his personal property to Ms. Huang before his death, at this time Ms. Huang is the object of Lao Wu's cheating in marriage, but Lao Wu later married Ms. Huang, and Lao Wu died after marriage.
Therefore, the rule of invalidity should clarify when the evaluation of conduct is the basis point.
3. The rules of invalidity of vulgarity shall specify the types of vulgarity
Article 17 of the Interpretation of the Supreme People's Court on <中华人民共和国民法典>Several Issues Concerning the Application of the General Principles of Contracts (hereinafter referred to as the "Judicial Interpretation of the General Principles of Contracts of the Civil Code") refines the violations of public order and good customs into "three types, one orientation, four factors, and one exception".
Paragraph 1 of Article 17 of the Judicial Interpretation of the General Principles of Contracts of the Civil Code stipulates that: "Although a contract does not violate the mandatory provisions of laws and administrative regulations, the people's court shall determine that the contract is invalid in accordance with the provisions of Article 153, Paragraph 2 of the Civil Code under any of the following circumstances: (1) the contract affects national security such as political security, economic security, and military security; (2) the contract affects social stability, fair competition or the order of fair competition, or harms the public interest, or otherwise violates social public order; Family ethics or harm personal dignity or other violations of good customs. "This mainly involves three aspects: national security, social public order, and good customs, but these are three major aspects, which can be said to be the legal interests that are mainly protected by the rules of public order and good customs, and the maintenance of national security, social public order, and good customs, that is, any behavior that affects national security, social public order, and good customs is prohibited from behavior.
Paragraph 2 of Article 17 of the Judicial Interpretation of the General Principles of Contracts of the Civil Code stipulates that: "When determining whether a contract violates public order and good customs, the people's court shall be guided by the core socialist values, comprehensively consider the subjective motives and transaction objectives of the parties, the intensity of supervision by government departments, the frequency of similar transactions between the parties within a certain period of time, the social consequences of their actions, and other factors, and fully explain the reasoning in the judgment documents." Where the parties genuinely conduct transactions for the needs of their lives, and do not have a major impact on social and public order, and do not affect national security, nor do they violate good customs, the people's court shall not find that the contract is invalid. "The determination of whether a judicial trial constitutes a violation of public order and good customs should be guided by the core values of socialism, and should comprehensively consider four factors, such as subjective motives or transaction purposes, government supervision, transaction frequency, and behavioral consequences, and take whether or not the impact of life is not great as an example.
The theoretical circles have also conducted general research and discussion on the situation of violating public order and good customs, considering whether the behavior itself is an act that violates sexual morality, family ethics, professional ethics, excessive restriction of freedom, or violates public order and good customs contained in administrative rules and local regulations, or whether it serves a criminal or illegal legal act from the perspective of the motive or purpose of the transaction, or whether it is a transaction aimed at interfering with the exercise of public power or undermining the order of fair competition.
However, from the perspective of judicial practice, the criteria for judging the subjective motive, transaction purpose, social consequences and other abstract senses are not as good as analyzing and inductive judgments based on civil acts and their objective appearances:
- 1. Whether the behavior or the content of the agreement itself is prohibited by public order and good customs, such as taking a second wife, etc.;
- 2. The act or the content of the agreement itself is not prohibited by public order and good customs, but the rights and obligations of the agreement are compulsory, and it is prohibited by public order and good customs, such as the premise that the father-in-law's will and daughter-in-law shall not remarry after the death of the son;
- 3. The content of civil juristic acts does not violate public order and good customs, but once it involves monetary transactions, it becomes contrary to public order and good customs. If you ask for a gift.
4. The parties' cognition is not within the scope of consideration of the rule of vulgar invalidity
The so-called party cognition refers to whether the party knew that his act violated public order and good customs at the time of the act, or whether he realized that the act itself was an infringement on national security, social public order, or good customs, and as long as the conduct objectively had the result of affecting or likely to affect national security, social public order, or good customs, and was harmful in nature, it should be denied, and whether the party knew the fact that it violated public order and good customs was not a decisive factor. Only when it is impossible to judge whether it violates public order and good customs based on the behavior or the content of the agreement alone will the subjective motives or transaction purposes of the parties be taken into account.
【Conclusion】
In addition to the "three types, one orientation, four factors, and one exception" stipulated in Article 17 of the Judicial Interpretation of the General Principles of Contract Codification of the Civil Code, the application of the rule of invalidity should be examined whether the act or the content of the contract itself is invalid, and when the content itself cannot be judged to be vulgar, the subjective motives of the parties and the purpose of the transaction should be taken into account to determine whether the vulgarity is invalid.
[Case study]
In order to save transfer taxes, the comments of netizens are to destroy the three views, and the incident occurred in Shanghai. In order to transfer the 8 million house to their son, a pair of parents carried out a series of miraculous operations in order to save money: first, the father and mother divorced, and only the father's name was left on the real estate certificate; then the son and daughter-in-law divorced, and the daughter-in-law married the father-in-law, and the daughter-in-law's name was successfully left on the real estate certificate; the daughter-in-law divorced her father-in-law, remarried her son, and the father and mother remarried; after tossing, the son's name was on the real estate certificate; a total of more than 300 yuan was spent, but about 500,000 yuan was saved in various taxes and fees. The point is, this is not an isolated case, and it has long been common to use fake divorce and remarriage operations to avoid taxes or evade purchase restrictions. Some people say that the house was originally a carrier of the family, but now the cart is turned upside down, a large number of families abandon marriage, make way for the house, and traditional human ethics are abandoned at will.
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