CAJ | 학술논문

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。
채표합동유력설주장채표합동겸구매매합동여사행합동쌍중속성。연이，채표합동적성립기중시당사인적합의，우강조채표청길유효작성급지교부，박개“구매”、“소수”등입법상여국제“접궤”적외재형식，유유증여합동방능창현채표발행지시적공익목적，체현채표적제도이익급사회공공이익。전통상대우채표합동계증여합동적이론건구인간단화일이엄수비평。사실상，의조채표자금관리“수지량조선”적원칙，채표합동작위유장모연합동가“일분위이”：기일위면향사회대음적격식화모연합동，기이위침대지표인적부해제조건적증여합동，후일합동구유사행특정。재증여합동적이론광가하，채표기시증명쌍층증여관계성립적빙증，우시채표발행궤구준여채민태장적증권。증여합동신해유리우보장채표각방적합법이익，방공채표발행적도덕풍험，실현채표사법적간역고효，촉사채표제도재시장궤제하규범、유서、건강지운행。
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 second is that, for the lottery holders＇ part, donation contracts are bound with alealory dissolving condition, namely, “not winning after drawing lottery. ” With the consensuses about donation issues between lottery issuers and lottery buyers, the contracts are established by deliveries of clean and complete lottery tickets, which are irrevocable on account of notarization. The theory of dual models of donation contracts helps to solve effectively in sales contracts theory 1he ~hree difficult problems of lottery buyers＇ supervisions over lottery public welfare fund, lottery prizes paid to juveniles, and identification and attrihutions of abandoned lottery prize. From lhe perspective of dual models of donation contracts theory, lottery tickets are vouchers which cerlify establishments of dual donation contracts, as well as, negotiable securities with which lottery buyers are allowed to claim for the prize money. The expectant rights created and indicated by lottery tickets will be attributed to elimination in case of no prize and otherwise translated into actual obligatory rights. The theory of dual models of donation contracts contributes significant value in practice. It can guaramee system interests and social public interests of the issuance management of lottery tickets, prevent and control moral hazards and other negative external factors of the issuance management of lottery tickets, create simple and highly efficient litigation channels between loltery buyers and lottery sellers, and finally, promote the lottery system development with better regulalion and order under the market mechanism.