Sheng Dian Observation, Wang Yongjing: Self-consciousness and back-to-back payment clause legal meaning-to Kant's view of moral philosophy as an entry.
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2024.11.14
Abstract: The background and reasons for signing back-to-back payment clauses vary greatly, from fair and legal to illegal and unfair. Moral and rational law is good law. In the event of a dispute over the back-to-back payment terms, the people's court shall explore the true meaning of both parties to the dispute, and determine the nature and effectiveness of the back-to-back payment terms in strict accordance with the clear mandatory provisions of laws and administrative regulations on the basis of the principles of autonomy, good faith and so on. The reply of the Supreme People's Court on the validity of the terms of the agreement between large enterprises and small and medium-sized enterprises to pay by a third party as the premise of payment (Fa Shi [2024] No. 11) may be intended to solve the confusion and injustice caused by back-to-back payment terms, but inadvertently may bring confusion in legal interpretation and new injustice in judicial judgment of back-to-back payment terms.
Keywords: autonomy, meaning autonomy, good faith, back-to-back payment terms legal nature, with conditions, with time limit
Keywords: autonomy, meaning autonomy, good faith, back-to-back payment terms legal nature, with conditions, with time limit
1. Introduction
Article 1 of the Reply of the Supreme People's Court on the Validity of the Terms of Payment by a Third Party as the Precondition for Payment between Large Enterprises and Small and Medium-sized Enterprises (Fa Shi [2024] No. 11, hereinafter referred to as the "Reply") stipulates that: in the process of construction, procurement of goods or services, large enterprises agree with small and medium-sized enterprises that payment from a third party is the precondition for payment, because its content violates the provisions of articles 6 and 8 of the regulations on ensuring the payment of funds for small and medium-sized enterprises, the people's court shall, in accordance with the provisions of paragraph 1 of Article 153 of the Civil Code, determine that the agreed clause is invalid. This provision of the Approval, commonly known as the "back-to-back payment clause is invalid" judicial rule.
According to the reply, the back-to-back payment clause violates the first paragraph of Article 6 of the regulations on ensuring the payment of funds for small and medium-sized enterprises, "organs, institutions and large enterprises shall not require small and medium-sized enterprises to accept unreasonable payment terms, methods, conditions and liability for breach of contract, and shall not default on the payment of goods, projects and services owed to small and medium-sized enterprises." And Article 8, paragraph 2, "Large enterprises purchasing goods, projects and services from small and medium-sized enterprises shall reasonably agree on payment terms and make timely payments in accordance with industry norms and trading habits." According to the first paragraph of Article 153 of the Civil Code, "Civil legal acts that violate the mandatory provisions of laws and administrative regulations are invalid. However, the mandatory provision does not cause the civil juristic act to be invalid." The provisions shall be deemed invalid.
Obviously, the "Approval" recognizes the provisions of Articles 6 and 8 of the "Regulations on Guaranteeing Payment of Small and Medium-sized Enterprises" as effective mandatory provisions, and then considers civil acts that violate this provision invalid. In my view, this philosophy of adjudication is insufficiently justified and is suspected of being purpose-oriented in order to find back-to-back payment clauses invalid and to lend a strong excuse.
First of all, the primary basis for determining the validity of a mandatory provision is to see whether the mandatory provision clearly stipulates that the consequence of the breach is that the contract is invalid. If the mandatory provision expressly provides that the consequences of the breach are null and void, the mandatory provision is a mandatory provision of validity. For example, Article 214 of China's Contract Law stipulates that "the term of the lease shall not exceed 20 years. More than 20 years, more than part of the invalid." This is the case with the provision. 1 However, the "Regulations on the Protection of Payment for Small and Medium-sized Enterprises" does not stipulate that violations of Articles 6 and 8 are invalid. Therefore, it is determined that Articles 6 and 8 of the "Regulations on the Protection of Payment for Small and Medium-sized Enterprises" are effective mandatory provisions and lack laws, Administrative regulations basis. The third paragraph of Article 17 of the regulations on ensuring the payment of funds for small and medium-sized enterprises stipulates that "if government organs, institutions and large enterprises fail to fulfill their obligations to pay funds to small and medium-sized enterprises in a timely manner, if the circumstances are serious, the department accepting the complaint may incorporate their untrustworthy information into the national credit information sharing platform in accordance with the law, and publicize the relevant enterprise-related information to the public through the enterprise credit information publicity system, and implement punishment punishment in accordance with the law."; The first paragraph of Article 27 stipulates that "if a large enterprise violates these regulations and fails to publicize the information of overdue payments to small and medium-sized enterprises in its annual report in accordance with the provisions, or conceals the true situation or practices fraud, it shall be dealt with by the market supervision and administration department in accordance with the law." It can be seen that Articles 6 and 8 of the Regulations on the Protection of Payment of Small and Medium-sized Enterprises belong to administrative mandatory norms, not effective mandatory norms, and cannot be used as the basis for the invalidity of the contract.
Secondly, articles 6 and 8 of the regulations on the protection of payment for small and medium-sized enterprises are recognized as effective mandatory norms and used as the illegal basis for the invalidity of back-to-back payment clauses, which is not only far-fetched, but also superfluous. The agreement of back-to-back payment terms is either a civil act with a time limit or a conditional civil act. The people's court can make a case-by-case determination or specify judicial rules on the validity of the time limit or attached conditions attached to the back-to-back payment terms, and there is no need to invoke Articles 6 and 8 of the Regulations on the Protection of Payment for Small and Medium-sized Enterprises as a basis. If it is determined that the specific back-to-back payment clause is a term clause, the large enterprise shall pay the small and medium-sized enterprise when the original reasonable expected time expires, and the non-receipt of the owner's payment shall not be used as a defense; If it is determined that the specific back-to-back payment clause is a conditional clause, it can be determined whether the attached clause conforms to the provisions of the Civil Code, whether it is effective and whether it has been fulfilled.
It is worth noting that the nature of the back-to-back payment clause is the primary issue of whether the term agreement or the conditional agreement is attached, and the nature of the back-to-back payment clause can be defined from the principle of good faith to the principle of autonomy of meaning, to the philosophical issue of human autonomy and self-awareness, to explore the underlying mechanism.
2. the sense of autonomy as the source of moral and legal subjectivity
The existence of morality and law is due to the existence of human society and human subjects. Without subjects or loss of subjectivity, morality and law cannot be discussed.
Relationship between (I) Ethics and Law
Aristotle believed that law was an important means of achieving justice and happiness. He believes that the purpose of morality and law is to pursue "good", but morality is more focused on individual self-cultivation, while law is a public tool to manage and regulate society. Aristotle emphasized that law should be consistent with morality, but also acknowledged that the two did not always exactly match. Morality and law can be externalized into norms, moral norms or legal provisions. Defined from the degree of self-discipline and compulsion, morality is an abstract and sublimated legal norm, while law is a concrete and bottom-line moral norm. 2
The normative school of law, represented by Kelsen, believes that the ultimate source of legal effect is something called a "fundamental norm" or "basic norm", which does not come from morality or fact, but a pre-set, unverifiable assumption. 3 The utilitarian school of law, represented by Bentham, believes that the coercive power of law comes mainly from the promotion of social welfare or public interest by law. 4 The school of natural law, with Aristotle as its ancestor, believes that the coercive power of law comes from the inherent morality and justice of natural law, that is, law should conform to the basic principles of natural law in order to have legitimate coercive power.
Whether it is the "fundamental norm" or the "public interest" consensus, it is inseparable from the cohesion of the human consciousness as the subject, and it is the product of the common consciousness of the subject. Consciousness is moral, with a sense of good and justice, and a vicious and selfish consciousness, which leads to the difference between good law and bad law.
(II) autonomous consciousness is the subjective source of morality and law
Morality also takes consciousness as the foundation of its existence. Moral norms that are not freely accepted and recognized by the subject consciousness cannot form self-discipline, so it is not called morality. Kant said, "Freedom is the reason for the existence of moral law, but moral law is the reason for the understanding of freedom. For if the moral law had not been clearly recognized in our reason, we would never have thought ourselves justified (though it is not self-contradictory) to suppose that there is such a thing as freedom. But if there were no freedom, the moral law would not be found in us at all."
The reason why human beings exist as subjects and have subjectivity is entirely due to their autonomy. The root of autonomy lies in the freedom of consciousness, which can dominate one's own consciousness, which is called autonomous consciousness. Loss of subjective consciousness is the loss of subjectivity, no subject is no moral perception and practitioners, there is no morality to speak. On the other hand, based on the self-discipline of morality, the perception, acceptance and practice of morality depend on the identification of independent consciousness. As the saying goes, freedom achieves virtue.
Self-consciousness is also the root of the subjectivity of law. As far as justice is concerned, the loss of natural person's sense of autonomy will lead to the lack of capacity or responsibility, can not become the legal capacity of the person or the subject of responsibility, the mandatory law is invalid, only in the protection of the basic rights of the natural person as the recipient of rights, with the capacity of rights. In this regard, only the ability to have rights does not have autonomy and independent consciousness, and its subjectivity is exercised by others. As far as legislation is concerned, the formation of legal norms and rules depends on the consensus reached by the participating legislators, and the real consensus is based on the autonomy of individual consciousness, rather than being forced, induced, or cognitively unclear. The main purpose of the consensus is to recognize, accept and maintain the autonomy of the subject's meaning and behavior, which is the field of private law, and the main purpose of the consensus is to form a common rule to manage and regulate the subject's meaning and behavior autonomy, which is the field of public law. Also because public law is an intervention in private life and civil society, public law should be inherently modest.
In other words, the subjectivity of morality and law is rooted in the sense of autonomy, which forms virtues, and the actual law that respects the sense of autonomy belongs to good law and conforms to the path of the rule of law.
3. autonomy, meaning autonomy and legal effect
In the field of private law, will autonomy is the premise of legal effect. In the field of public law, meaning autonomy is the basis of legitimacy and public interest, and is an important factor in considering the harmfulness of legal interests. After all, public law that is sufficiently representative and fully expresses and embodies free opinions is more legitimate.
the (I) of civil law should be based on the maintenance of autonomy
In his book System des heutigen r & ouml;mischen Rechts, Savigny put forward the view that "law comes into being spontaneously from the organism of social development", and emphasized that law should respect and protect the consensual between parties. He believed that civil law should be based on the habits of social life and the way of dealing, and that autonomy of will is the expression of individual freedom, the basic task of civil law is to protect this freedom of expression of will and transaction. 5 Yellin in "The Purpose of the Law" (Der Zweck im Recht), the purpose of the law is to achieve the interests of individuals and society. Autonomy of will is the embodiment of individual will, and civil law should provide guarantee for the free exercise of individual will. Maine put forward the famous "from identity to contract" theory in the "ancient law. In his view, the core of modern law is that individuals can make their own choices, and the law replaces the traditional identity relationship by contract. Maine points out that "autonomy of meaning is one of the essential features of modern law". 6
Therefore, whether it is civil legislation or justice, the core goal should be to maintain and protect the autonomy of the will of civil subjects, should not be easily misinterpreted, denied.
(II) autonomy consciousness is the basis of meaning autonomy
As mentioned earlier, subjectivity based on autonomous consciousness and autonomy is the prerequisite for the autonomy of the subject's meaning. The basis of the legal effect of the meaning is not only the accuracy of the meaning (appearance), but also the true meaning. And to express the true meaning, need to be based on independent consciousness. The reasons for the lack of autonomy or lack of autonomy mainly include: lack of rationality, being deceived, being threatened, corresponding to the lack of civil capacity or limited civil capacity, fraudulent civil acts, coerced civil acts, resulting in non-establishment, pending ratification, revocable and other legal consequences. Obviously, the lack of self-consciousness will lead to the authenticity of meaning expression defects, meaning autonomy defects produce subjective defects.
(III) principle of good faith is a binding "legal lock" of autonomy
Professor Xu Guodong believes that the principle of good faith is the basic principle of civil law, and can even be regarded as the "civil law imperial clause"; he pointed out that the principle of good faith has a transcendent and universal status in the civil law system, and can be applied to a wide range of laws. Relationships, from contract performance, debt settlement to the exercise of rights, cover almost all aspects of civil activities. Professor Xu Guodong also believes that the principle of good faith embodies the moral requirements in the civil law and is an important way to combine morality with the law. He pointed out that the principle of good faith has a moral basis and requires the parties to be "perfect". When exercising their rights and performing their obligations, they should not only abide by the law, but also conform to social morality. 7
Sincerely zai si said, and then on. The "moralization" function or moral foundation of the principle of good faith lies not only in the moral requirement of "perfection" of the parties concerned, but also in the moral requirement of "treating others with integrity. The principle of good faith, as the "imperial clause of civil law", is not only reflected in its result & mdash;& mdash; in the civil law system, it has a transcendent and universal status, but also in its reason & mdash;& mdash;& mdash; The principle of good faith is a binding legal lock of meaning autonomy.
The author thinks that the reason why meaning expression and meaning autonomy are legally binding is locked through the principle of good faith, and the reason why the principle of good faith can give meaning autonomy legal binding is the trilogy of honesty, truth and credit. First, the heart is sincere and free to proceed from the inner will; secondly, the expression of truth, through the expression of behavior to truly express the inner will; finally, keep your word, the implementation of their own meaning and behavior to the opposite party to produce trust interests. In this regard, the principle of good faith has become the "legal lock" that gives the autonomy of the meaning of the legal binding force, but also lies in its two-way binding, that is, the principle of good faith is not only used by the relative to restrain the actor, but also can be used by the actor to restrain the relative. For the relative, he may require the perpetrator to abide by the credit, which involves civil rights and obligations, so the law protects it. For the perpetrator, he can use "sincerity" and "reality" to defend the counterpart & mdash;& mdash; is not bound by the inner meaning of "sincerity" or "reality.
The two-way binding nature of the principle of good faith is essential to determining the nature of back-to-back payment clauses.
4. how to determine the legal nature of back-to-back payment terms
Article 6, paragraph 1, of the regulations on ensuring the payment of funds for small and medium-sized enterprises stipulates that organs, institutions and large enterprises shall not require small and medium-sized enterprises to accept unreasonable payment terms, methods, conditions and liability for breach of contract and other trading conditions, and shall not default on the payment of goods, projects and services owed to small and medium-sized enterprises. The Reply does not define whether the back-to-back payment clause belongs to the payment term agreement, the payment method agreement or the payment terms agreement, and then determines the nature and validity of the back-to-back payment clause according to the relevant provisions of the Civil Code, but simply determines that the first paragraph of Article 6 of the Regulations on the Protection of Payment for Small and Medium-sized Enterprises belongs to the mandatory norm of validity.
In fact, the back-to-back payment clause is either a term payment clause or a conditional payment clause, which only needs to be determined on a case-by-case basis.
(I) civil juristic acts with time limit: explicit and implicit
The civil legal act with time limit is a kind of civil legal act with time expectation, and the time will come irreversibly, so the civil legal act with time limit is a kind of definite civil legal act. The attached time expectation can be divided into explicit time expectation and implicit time expectation. The former is for example to agree on a certain day in a certain year or on the date when someone reaches the age of 20, and the latter is for example to agree on the date when a building under construction is completed and accepted.
For implicit time expectations such as the above, it is often easy to be misunderstood as conditional expectations, on the grounds that the building may be unfinished and uncertain. Therefore, the determination of whether it belongs to the expectation of time or condition returns to the level of the actor's autonomy and true meaning: whether the actor wants to wait for the threshold of time or the achievement of the condition; whether the legal effect of the expression of meaning is affected by subsequent changes in circumstances.
Case Analysis: A self-employed person (defendant) owed 100000 yuan to the plaintiff for purchasing color TV sets, refrigerators, air conditioners, etc. from a shopping mall (plaintiff). Both parties agreed to pay off all the debts before the end of October 1999. However, after the repayment period came, the defendant failed to pay on time. The plaintiff urged him many times. The defendant proposed that his friend Wang Mou owed him a loan of 150000 yuan, which should be paid to the defendant before the end of April 2000. After the payment was made, the defendant would immediately pay off the arrears. The two sides reached a repayment agreement for this purpose. The agreement stipulates that the defendant "shall pay off the balance after Wang Mou repays before the end of April 2000". By the end of April 2000, the defendant had still not repaid. The plaintiff asked the defendant to repay the loan immediately. The defendant proposed that according to the repayment agreement, the plaintiff agreed to repay the loan only after Wang Mou repaid the loan. Now Wang Mou is unable to repay the loan on schedule due to business losses, so the defendant cannot perform the repayment agreement for the time being. For this reason, the plaintiff sued the court and demanded that the defendant pay the goods immediately. The repayment agreement should be understood in terms of the purpose of the repayment agreement between the parties and the overall content of the repayment agreement. The reason why the two parties agreed on Wang's repayment was that the defendant proposed that Wang could repay before the end of April 2000, so the plaintiff agreed to reach a repayment agreement. 8
(II) conditional civil juristic acts: what are the conditions
Conditional civil juristic act refers to the fact that the parties are objectively uncertain in the future as a supplementary to the effect of civil juristic act. The facts mentioned here can be natural events, social events, or the factual behavior of the parties or the factual behavior and legal behavior of the third party. Objectively uncertain means that the parties who have no right to manipulate the event are objectively unable to determine whether the attached event will occur; if the behavior of one party is attached as a condition, the opposite party is objectively unable to determine whether it will occur; if other types of events are attached as conditions, there is uncertainty for both parties.
Although conditional civil acts are conditioned on "objectively uncertain facts in the future", the "objectively uncertain facts" cannot be separated from the autonomous consciousness and true meaning of the subject of the act and regarded as purely objective things. Without the sense of subjectivity and autonomy, legal acts and even conditional civil acts are without a tree. Therefore, the identification of conditional civil acts should explore the true meaning of the perpetrator.
the hammer of (III) time expectation and conditional expectation: autonomous consciousness
Civil juristic acts are based on and bound by the expression of will. The appearance of civil juristic acts should not be used as the basis for determining the nature and effectiveness of civil juristic acts, but should be based on true meaning. For specific civil legal acts, whether the parties have a time expectation (with a time limit) or a conditional expectation (with conditions), it is necessary to explore whether the actor sets a definite expectation or an uncertain expectation. Moreover, we should respect the self-consciousness of the behavior when setting up expectations, and should not misinterpret the original self-consciousness and true meaning of the actor according to the objective situation afterwards.
(IV) determines the nature of back-to-back payment terms based on the principles of autonomy and good faith
Returning to the legal nature of back-to-back payment terms, according to the independent consciousness and true meaning, in the back-to-back contract in which large enterprises and small and medium-sized enterprises agree that large enterprises will pay small and medium-sized enterprises n days after receiving the project payment, small and medium-sized enterprises know and know the payment time and amount of the upstream contract, so the true meaning of both parties when signing the back-to-back payment terms should be: the owner payment is a matter of course, sooner or later, it's just a matter of waiting time. For example, the general contract agreed to be completed on December 31, 2024, and the owner settled and paid the general contractor within 1 month after completion, and the subcontract agreed that the general contractor would pay the subcontractor within 5 days after receiving the owner's payment. In these circumstances, the Subcontractor's true meaning shall be that the payment for the Works is reasonably expected to be received in February 2025.
Neither the general contractor nor the subcontractor will set the general contractor's settlement of the collection to the owner as an uncertain, unpredictable and uncontrollable event, and their expectation is that the collection can be settled, otherwise it is not reasonable to continue the construction project. Even if the owner after the event of bankruptcy, debt evasion and other circumstances resulting in the failure to collect the total package, can not be based on the reverse to determine that the subcontract is set by conditional payment.
In the case of a contract with a term, the original expectation or reasonable expectation of the contract becoming effective or lapses at the end of the term. If the specific back-to-back payment clause is identified as a term clause, the general contractor may be required to pay at the expiration of the reasonable period, regardless of whether the general contractor receives the payment.
The (V) determines the nature of back-to-back payment terms based on the principles of good faith and fairness
According to the principles of good faith and fairness and reasonableness, back-to-back payment only stipulates that the general contractor receives the payment to the subcontractor, and does not agree that the subcontractor will waive the right to the project if the general contractor does not receive the payment, and the back-to-back payment clause should not be deemed to be a conditional agreement. If it is agreed that the subcontractor will waive the right to the project payment if the general contractor does not receive the payment, especially in the case of some owners designated professional subcontracting or subcontractors attached to the general contractor for construction, it can be considered as a conditional back-to-back payment clause, that is, the general contractor does not receive the payment and the subcontractor has no right to collect the payment.
In back-to-back payment contracts, if the owner's payment and the general contractor's collection (including the actions of third parties outside the contract) can be controlled or influenced by the general contractor, and the general contractor does not actively claim rights according to the general contractor contract, the back-to-back payment contract shall be recognized as a contract with a time limit, or even if it is recognized as a conditional contract, the attached conditions shall be deemed to have been fulfilled.
5. epilogue
Back-to-back payment clauses are very common in civil and commercial contracts such as construction projects. The background and reasons for such clauses are complicated, and their true meaning and purpose of pursuit are also very different. In the event of a legal dispute, the people's court may determine its nature and effectiveness in accordance with the principles of autonomy, good faith, equal compensation, fairness, etc. The original intention of the "Approval" may be to solve the market confusion and injustice caused by back-to-back payment clauses, but it may also lead to new confusion and injustice in at least three aspects:
First, as mentioned earlier, citing the provisions of Articles 6 and 8 of the Regulations on the Protection of Payment for Small and Medium-sized Enterprises as the basic legal basis for the invalidity of back-to-back payment clauses is excessive or improper application of the Civil Code. The provisions of the first paragraph of Article 53 may cause confusion in the legal profession's understanding and application of the standard of invalidity of civil legal acts.
Second, part of the back-to-back payment clause, in line with the true meaning of the parties, in line with the principle of fairness and reasonableness, for example, the subcontractor does have the intention of sharing the risk of not being able to collect the funds attached to the conditional waiver of the right to the project, for example, in the above-mentioned owner designated subcontracting or affiliated construction situation, to maintain the back-to-back payment clause is legal and reasonable. The Approval will result in the invalidity of the back-to-back payment terms in the aforementioned circumstances, resulting in a new injustice. There is reason to believe that the circumstances that should be valid but are found to be invalid because of the Approval are by no means limited to the foregoing.
Third, the "Approval" considers that the back-to-back payment terms between large enterprises and small and medium-sized enterprises are invalid. Is the back-to-back payment terms between large enterprises and large enterprises or between small and medium-sized enterprises valid? If it is also considered invalid, these circumstances do not violate the provisions of Articles 6 and 8 of the Regulations on the Protection of Payment for Small and Medium-sized Enterprises. What is the basis for invalidity? If it is considered valid, how is the principle of equal status of civil subjects (regardless of government, large enterprises, small and medium-sized enterprises) in civil activities reflected here?
Comment:
1. Criteria for judging mandatory provisions on the validity of contracts-China Court Network
https://www.chinacourt.org/article/detail/2011/12/id/470299.shtml
2. [Ancient Greece] By Aristotle, Translated by Miao Litian: "Politics", Renmin University of China Press, 1999-2000 Edition
3. [Austria] Hans & middot; By Kelsen, translated by Lei Lei: "Pure Law Theory", Law Publishing House, 2021 Edition
4. [English] by Bentham, translated by Shi Yinhong: "Introduction to Principles of Morality and Legislation", Commercial Press, 2000 Edition
5. [Germany] Savigny, translated by Zhu Hu: "Contemporary Roman Law System", China Legal Publishing House, 2010 Edition
6. [English] By Mayin, Translated by Shen Jingyi: "Ancient Law", Commercial Press, 1959 Edition
7. Xu Guodong: Interpretation of the Basic Principles of Civil Law & mdash;& mdash; Research on the History, Practice and Legal Theory of the Principle of Good Faith, China Legal Publishing House, 2023 Edition
8. with term contract_Baidu encyclopedia, https://baike.baidu.com/item/闄勬湡闄愬悎鍚?5853142
& nbsp; author Introduction
