彩票合同新解  

New Interpretation of Lottery Contracts

作　　者：吴勇敏[1] 马俊彦[1] 

机构地区：[1]浙江大学光华法学院,浙江杭州310008

出　　处：《浙江大学学报（人文社会科学版）》2015年第2期151-163,共13页Journal of Zhejiang University:Humanities and Social Sciences

摘　　要：彩票合同有力说主张彩票合同兼具买卖合同与射幸合同双重属性。然而,彩票合同的成立既重视当事人的合意,又强调彩票清洁有效作成及至交付,剥开"购买"、"销售"等立法上与国际"接轨"的外在形式,唯有赠与合同方能彰显彩票发行之始的公益目的,体现彩票的制度利益及社会公共利益。传统上对于彩票合同系赠与合同的理论建构因简单划一而广受批评。事实上,依照彩票资金管理"收支两条线"的原则,彩票合同作为有奖募捐合同可"一分为二":其一为面向社会大众的格式化募捐合同,其二为针对持票人的附解除条件的赠与合同,后一合同具有射幸特征。在赠与合同的理论框架下,彩票既是证明双层赠与关系成立的凭证,又是彩票发行机构准予彩民兑奖的证券。赠与合同新解有利于保障彩票各方的合法利益,防控彩票发行的道德风险,实现彩票司法的简易高效,促使彩票制度在市场机制下规范、有序、健康地运行。It seems a highly-cited view that lottery contracts have dual attributes of sales contracts and aleatory contracts. Nonetheless, to put this standpoint as a prevailing qualitative theory of lottery contracts, there still remains three bones of contention： First, the establishment of lottery contracts focuses on the consensuses between the parties to a contract, and it also lays emphasis on the clean and effective executions and deliveries of lottery tickets. Thus, lottery contracts are typical real contracts. Second, lottery contracts do not share the same essence as ordinary contracts for sales, in spite of such external forms as “purchase” and “sale” in legislation, keeping in line with international practice, the phrase “prize winning donation” may be in better accord with the interests of lottery issuance and public welfare in China. Third, lottery contracts, as aleatory contracts, are similar in tool, to those for gamble, but in value, lottery tickets are franchised and issued by the state for the purpose of raising public welfare funds and promoting the development of public welfare establishments in China. Therefore, their legitimacy value originates from the purpose of public welfare behind lottery contracts. lottery contracts were donation contracts subjected to collateral obligations, was widely criticized for its excessive simplicity and indistinctness. In fact, lottery contracts, as prize winning donation contracts, according to the principles of lottery funds＇ expenditures and reven,＇es managed separately, can be interpreted as dual models of contracts. The first is typical standard form of the-general-public oriented donation contracts. These contracts are established when the two parties concerned reach the consensuses about donation, and when the donator pays the money equal to the fixed face value of lottery tickets. Donation contracts are irrevocable because of their natures serving public interests or fulfilling moral obligations, such as disaster or poverty relief, etc. The

关 键 词：彩票合同 赠与合同 买卖合同 射幸合同 要物合同 双层赠与合同 公益目的 

分 类 号：D923.6[政治法律—民商法学]