关键词: 商事规避行为, 商事强制性规范, 效力标准, 二阶衡平模型

Abstract: The effectiveness of commercial laws’ evasive behavior depends on its compatibility with the substantive legal order, and should be addressed separately from epistemology and instrumental theory to break away from the dilemma of inconsistent standards for judging the effectiveness of commercial laws’ evasive behavior. In terms of epistemology theory, the value elements and order involved in determining the effectiveness of commercial laws’ evasive behavior are different from those of civil laws’ evasive behavior. The court should match different judgment logics accordingly and make a more cautious negative evaluation of commercial laws’ evasive behavior. In terms of instrumental theory, strengthening legislative supply is not the optimal solution. Instead, we should start with judicial technology and construct a unified judicial judgment paradigm to limit the discretionary space. Therefore, it is advisable to establish a second-order equity model with the proportionality principle as the core. In view of the possibility of value error of the law as it is, the proportionality principle should be applied to make the first evaluation of commercial mandatory rules. For the “negative evaluation law”, evasive behavior should be recognized as legal and effective. For the “positive evaluation law”, the legal effectiveness of evasive behavior still needs to use the proportionality principle to make a second evaluation of its effective boundary. The evasive behaviors that satisfies the three elements of legitimacy of purpose, necessity of effect, and appropriateness of means should be judged as effective.

Key words: commercial evasive behavior, commercial mandatory rules, effectiveness standard, second-order equity model