| The determination of the effectiveness of the crime-related contract mainly exists in the case of the crime of fraud.In recent years,the crime of contract fraud,the crime of fraud in financing,the crime of credit card fraud and other property crimes are high,and the number of the crime of fraud is increasing year by year.This type of criminal offence is more related to the existence of the contract,and the validity of the contract which is involved in the criminal offence of the fraud is essentially the application of Article 52 in the Contract Law of the People's Republic of China.Article 52 of the Contract Law,as a general provision for determining the invalidity of a contract,has become the highest applicable frequency clause of the negative contract since its application.The understanding and application of the provisions of Article 52 of the Contract Law is the premise and foundation for determining the effect of the contract.Through researching and analyzing the adjudicative documents related to the validity of the contract of fraud,it is found that 71.97% of the adjudicative documents and 28.03% of the adjudicative documents that determine the validity of the contract were selected from 239 valid adjudication documents.Among the cases in which the validity of the contract is judged,20.35% of the adjudicative reasons believed that the contract meaning of the suspected crime of fraud was true,and there was no invalidity provided by the law.In cases in which the contract was invalidated,52.23 % of the adjudicative reasons believed that,in accordance with Article 52 and Item 3 of the Contract Law,the contract was null and void for “concealing illegal purpose in a lawful manner”,and 20.90% of the adjudicative reasons believed that,according to Article 52 and Item 3 of the contract Law,the contract was null and void because of “violation of the law,mandatory provisions of administrative regulations”.Through the data analysis,it can be seen that there are two opposing viewpoints in the judicial practice of our country: one is the validity of the crime-related contract;the other is the invalidity of the crime-related contract.The conclusion that “the contract involved in a crime is not definitely invalid” can be drawn by analyzing the thrust of the court decision,which has the legitimacy of applicable law and accords with the attribute of civil and criminal value.In recent years,the Supreme People's Court has insisted that the contract should not be necessarily invalid.The legal basis for determining the effectiveness of the crime-related contract is mainly the Article 52 and Item 3 of the Contract Law and Article 52 and Item 5 of the contract,and how to apply the Article 52 and Item 3 of the Contract Law and Article 52 and Item 5 of the contract.It is the central issue to correctly determine the effectiveness of the crime-related contract.The basic mode of the determination of the validity of the crime-related contract is to analyze the Article 52 and Item 3 and 5 of the Contract Law by using the Judicial syllogism as the methodology.The legal reference rules for the determination of the validity of the crime-related contract are in accordance with Article 52 and Item 5 of the Contract Law: the contract which is in violation of the mandatory provisions of the law and the administrative regulations is not valid,and the setting function of the Article 52 and Item 5 of the Contract Law is located as the "bond" connecting the public law and the private law.The criminal law,which is a property of public law,can intervene and influence the field of the law through the items,embody the function of the law;and the technical function of the Article 52 and Item 5 of the contract law is located as a "Authorized Interpretation Clause",and it is emphasized that,in addition to the leading function,the judge is also given the right to measure and judge the case.Therefore,whether the provisions of the criminal law can be caused to enter the Article 52 and Item 5 of the Contract Law is the mandatory provision for the validity of the judgment contract,not simply by the traditional Judicial syllogism,but by the Judicial syllogism of the administration of justice,and the judge judging the substance of the law,to judge the purpose,background and intention of the setting of a specific criminal law by means of the legal interpretation rules,to distinguish the mandatory provisions of the effectiveness and the mandatory provisions of the administrative law,and to the criminal law with the purpose of setting the purpose and the mandatory provision of the content,the effect of the Article 52 and Item 5 of the Contract Law on the negative-related crime shall be applied.The application of Article 52 and Item 5 of the Contract Law shall be excluded for the purpose of setting and the criminal law on which the content belongs to the “Administrative mandatory provisions”.Article 146 of the General Provisions of the Civil Law of China provides the false representation that the civil legal act that the actor and the relative person have made in a false sense is invalid.Whether the provisions of the criminal law can be in the negative contract effect under the provisions of Article 146 of the General Provisions of the Civil Law,the judge is still required to judge the false representation by means of Judicial syllogism as the methodology and the legal interpretation rules in combination with basis of the specific situation of the cases.In practice,a distinction should be made between the act of false expression of consent and the act of false representation of one party.And the act of false expression of consent shall,in accordance with Article 146 of the General provisions of the Civil Law,negate the validity of the contract and give effects to the unilateral false representation of the perpetrator for the purpose of the crime.The validity of the contract shall not be negated in accordance with Article 146 of the General provisions of the Civil Law.The norms of criminal law cannot directly act on the validity of contract,but make value judgment after substantive judgment of the Law,which highlights the importance of legal purpose in legal reasoning.For the purpose of setting up the provisions of the Criminal Law,the protection of legal interests and other factors,the specific charges identified in the provisions of the Criminal Law can be divided into two types of crimes: violation of the market entry type and non-violation of the market entry type.The behavior of the parties is also divided into consensual hypocrisy and unilateral hypocrisy.The classification provides an effective path for the determination of the validity of the contract involved in the crime so that the judge can measure the value in the individual case.In the judicial practice of our country,the mode of dealing with the validity of the contract involved in crime is generally lack of clear operability,and the choice of the mode of handling provides a procedural basis for the protection of substantive rights.At the present stage,there are three modes: “Criminal Law first and then Civil Law”,“Civil Law first and then Criminal Law”,“Combination of Civil Law and Criminal Law”.The court often suspends the civil action simply because of the civil legal act in dealing with the contract effect cases involving the crime on the basis of “Criminal Law first and then Civil Law” blocking the civil count from hearing.At the time when the interests of private rights are being protected day by day,we should exclude the priority application of the mode of “Criminal Law first and then Civil Law”,and propose to try out the mode of dealing with the principle of “Combination of Civil Law and Criminal Law”,“Criminal Law first and then Civil Law”,“Civil Law first and then Criminal Law” as an exception.In essence,the evaluation process of the validity of the contract involved in crime is a process in which the judge applies the judicial syllogism to interpret Article 52 of the Contract Law of our country.For a long time,due to the absence of the protection of private rights and the deep-rooted thought of "heavy punishment over the people",our country has given negative evaluation to the effectiveness of the criminal contract for a long period of time.Moreover,the judgment standard and procedure choice of each court in the trial of criminal civil contract cases are extremely inconsistent,resulting in the lack of judicial authority and damage to the rights and interests of the parties.Through the analysis of the application of Article 52 of Contract Law in judicial practice,this paper provides a path for the correct judgment of the validity of the contract involved in crime,in order to achieve the modern concept of rules of law,which strengthens the equal protection of public power and private rights,and gives priority to the protection of private rights. |
PDF Full Text Request