电子格式合同效力的实证论析

文章在考察了电子技术特别是计算机网络技术对缔约形式的影响后认为:(1)电子格式合同(如拆封合同、按键合同)已成为软件业乃至整个新经济的基本交易形态,并给传统合同法的改革带来了新的契机;(2)应在法律效益原则的指引下,突破传统要约与承诺的狭窄、僵固模式,赋予电子格式合同以法律效力和可执行性;(3)电子格式合同同样应满足一般合同法上诚信和公平原则的基本要求;(4)根据电子商务的特性,对电子格式合同公正性的检测,其着眼点应是程序公正,以程序公正实现实体公正。

Case Study on Validity of Electronic Standard Contracts

After providing an overview of the impact of electronic technologies, specially network technology, on the formation of contracts, this paper argues: First, electronic standard contracts, such as shrink-wrap contract and click-wrap contract, have become the fundamental transaction forms and bring a new opportunity to the innovation of contract law. Second, according to the principle of legal efficiency, the validity and enforcement of electronic standard contracts should be recognized, and the parochial and mechanical mode on traditional offer and acceptance should be broken. Third, equally electronic standard contracts must satisfy the basic requirements of the principle of fairness and good faith in the contract law. Fourth, according to the character of electronic commerce, the fairness of electronic contracts would be tested from the standpoint of the procedural fairness, and the substantial fairness would be achieved by way of the procedural fairness.