以一起担保纠纷为范本论对合同效力认定的法律适用原则--兼评新公司法对旧公司法第60条第3款的修改

我国司法机关对合同效力的认定,适用特殊的法律原则:"依照合同成立时的法律合同有效的,适用当时的法律,依照合同成立时的法律合同无效,适用现行法律合同有效的,则适用现行法律".最高法院以司法解释的形式赋予了现行法律溯及力,难免有越权之嫌,这一原则适用的结果加剧了民事关系的不确定性、破坏了法制的稳定,同时最高法院的司法解释本身也尚需解释.这一原则的适用带有较大模糊性与不确定性.

Legal Application Doctrine to Cognizance of A Contract's Effectiveness in a Guaranties Dispute--More on the Amendment of Clause 3 of Article 60 of Company Law

In China,a special legal principle is applied to affirm contract's legal force,which in the language of law says,'where the contract is considered valid in light of the law applied while such contract was entered into,the law shall still be applied to the contract later;where the contract is valid in accordance with the law in force,notwithstanding the contract is considered invalid in light of the law applied while such contract was entered into,the law in force shall be applied to such contract'.The fact that the Supreme People's Court acknowledges the retrospective force of the applicable law in form of judicial interpretation invites suspicion of exceeding its authority.What's more,as a result of application of the principle,civil legal relationships become less determinant,and the legal system become less stable.Meanwhile,the judicial interpretation by the Supreme People's Court also needs interpreting.And the application of the principle carries a great deal of vagueness and uncertainty.