论约定优于法定原则

约定优于法定是合同法的一项重要原则。但在市场经济发展的今天,尤其是在消费合同中,这一原则受到了挑战,完全遵守这一原则会形成合法不合理的情况。因此重新审视这一原则,适时地赋予约定优于法定原则新的内容,就显得十分必要了。文章在探究了约定优于法定原则之后提出在消费合同中应当推行约定有利的原则,以切实保护消费者的权益。     

Unmasking Jane and John Doe: Online Anonymity and the First Amendment

When individuals turn on the television, listen to the radio, or purchase newspapers, they are not forming contractual relationships. Yet, almost without exception, online readers, viewers and listeners are required to enter into “terms of use” contracts. These ubiquitous agreements are generally unfavorable for the user in areas of intellectual property rights and privacy. In addition, the terms often restrict users’ behavior and their ability to litigate any disputes with a Web site. In analyzing the implications of contracts for Web site users, this article examines whether courts have recognized a distinction between online consumers, interactive users, and “passive media users”—online readers, listeners or viewers who engage in little, if any, of the activity traditionally required to form contracts. Case law reveals a frequent de facto exemption from online agreements for passive media users, but not highly interactive users. This exemption could be formally recognized to benefit all parties to a contract.     

Offering financial services over the Internet: What is possible and how to protect consumers?

Modern means of communication are increasingly being used for the provision of financial services. This paper shows that although in Belgium it is legally possible to conclude an agreement relating to financial services completely online, in practice it often remains impossible to perform all legal acts to conclude the contract electronically. However, this does not mean that Belgian consumers actually have to go to their financial institution to sign the contract, since many institutions enable consumers to enter into a distance contract. In view of this, this paper also aims at examining whether the techniques which are being used by the legislator to protect consumers – i.e. the obligation to provide certain information and the right to withdraw from the contract – are effective.     

论合同的有效成立及其约束力

合同的成立通过形式逻辑的手段进行二阶构造,这不但能凸显出合同的表面成立和合同的有效成立的各自意义,而且有助于深化对合同成立问题的认知。合同的有效成立是研究一切合同问题的逻辑起点,所以对合同有效成立上的法律约束力问题的研究就显得很有必要。     

关于"百事内讧"事件的经济法律分析--兼论中国入世后外商投资企业中利益格局的变化与矛盾冲突的协调

"百事内讧"事件,反映了我国加入WTO后,跨国公司调整全球投资战略意图,与作为东道国的中方合资、合作者之间利益格局发生变动,引起矛盾冲突激化的形势.在合作双方争论的背后,隐藏着各自对于利害关系的权衡抉择,问题的关键已经超出单纯的违法违约及其责任怎样承担的范畴,涉及到如何取舍以求花费最小的成本获取最大利益的全局考量.对其进行适当的经济法律分析,有助于争议双方在博弈中作出最优或者次优方案的选择.     

Alive and well: the good faith principle in Turkish contract law

Good faith is a principle prominent in civil law countries but less so in common law countries, and which allows courts to deviate from black letter law. It provides them with flexibility to change the outcome of a deductive legal decision if they regard it as absurd. The principle of good faith thus empowers the judiciary to deviate. It can be used for an indefinite number of cases and might lead to almost all conceivable legal consequences. For instance, the judge can invalidate the contract, change the price, suspend or change a clause in the contract, or grant injunctive relief, compensation of damages, the disgorgement of profits or a removal claim. We argue that if the principle of good faith is used to develop contract law into an instrument for redistributing wealth in favor of poor parties, this can destroy the concept of contract as a social mechanism for generating mutual gains for parties, which might lead to unwanted economic consequences in terms of efficiency losses. We argue that the principle of good faith must be carefully and reluctantly used to reconstruct the fully specified contract and that well-informed judges, who understand the factual environment of a contract well should ask how fair bur self-interested parties would have allocated the risk in a pre-contractual situation. If the courts restrict the application of the good faith principle to these functions, this provides elasticity that otherwise would not exist if courts would strictly use the rules laid down in black letter law. Moreover, it saves transactions costs and is therefore in line with economic reasoning. We look at the most important Turkish cases and find that the Turkish Supreme Court following Continental European doctrines of good faith actually uses this principle to curb opportunistic behavior of parties and not to achieve redistribution from the rich to the poor by way of interfering into contract law.     

Innovation in the public sphere: reimagining law and economics to solve the National Institutes of Health publishing controversy

The National Institutes of Health (NIH) are responsible for the largest proportion of biological science funding in the United States. To protect the public interest in access to publicly funded scientific research, the NIH amended terms and conditions in funding agreements after 2009, requiring funded Principal Investigators to deposit published copies of research in PubMed, an Open Access repository. Principal Investigators have partially complied with this depository requirement, and the NIH have signaled an intent to enforce grant agreement terms and conditions by stopping funding deposits and engaging in legal action.The global economic value of accessible knowledge offers a unique opportunity for courts to evaluate the impact of enforcing ‘openness’ contract terms and conditions within domestic and international economies for public and economic benefit. Through judicial enforcement of Open Access terms and conditions, the United States can increase economic efficiency for university libraries, academic participants, and public consumers, while accelerating global innovation, improving financial returns on science funding investments, and advancing more efficient scientific publishing models.     

试论保险人的说明义务

保险人的说明义务在性质上是一种法定义务,也是一种附随义务和先合同义务。保险人对保险合同条款的说明不限于口头或书面的形式,但应当是全面和广泛的。保险人违反说明义务,投保人有解除合同的权利,若属故意则可要求双倍返还保险费,若属过失可要求返还保险费及其利息。     

TMT contracts: Avoiding termination and achieving positive realignment: How legal counsel can make a difference - A UK perspective

“The task of a leader is to get his people from where they are to where they have not been” Henry A. KissingerWith stuttering growth in the Western economies where major sourcing and TMT (Technology, Media & Telecoms) contracts are pervasive, it is perhaps not surprising that internal and external legal counsel are increasingly being called upon to advise clients on termination options and strategies to effect or oppose a threatened termination for breach of contract. This short paper considers why this has happened and the other factors which are in play which have meant that advice on termination and the renegotiation of contracts in this context has become more common. Expertise in this area is part of an IT lawyer’s tool kit and we consider that this is an area where internal and external legal counsel can make a substantial difference in delivering solutions to their clients.In this paper I talk about termination and renegotiation interchangeably. The reason for this as will become clear is that all forms of termination, whether they are consensual or contested, will involve some form of renegotiation of the terms of the contract between the parties. This is because it is almost impossible except perhaps in the simplest of installations to predict the nature in which a supplier or a customer may wish to change the services provided, and consequently even the most carefully crafted of exit and transition clauses, schedules and plans will require some form of post-contract negotiation between the customer, the outgoing supplier and potentially a new supplier or suppliers. This will necessarily involve some form of renegotiation of the terms of the contract between the parties.This paper looks at renegotiation in the context of a termination scenario rather than dealing with renegotiation during the normal course of operation of the contract.     

The right of withdrawal under the Consumer Rights Directive as a tool to protect consumers concluding a distance contract

Since 1997, the European legislator has aimed to protect consumers concluding a distance contract amongst others by entitling them to withdraw from the contract. First, this paper analyses the right of withdrawal as it is incorporated in the 2011 Consumer Rights Directive (CRD). This paper illustrates that, compared to the 1997 Distance Selling Directive, the CRD, contains more detailed rules, offering some useful clarifications. Further, this paper shows that the CRD slightly increases consumer protection, for example by determining that the mere beginning of performance under a services contract does not lead to the loss of the right to withdraw from the contract. However, consumers are also at risk where, without any explicit warning, they are held liable for the diminished value of the goods used during the withdrawal period. In a second part of the article, it is argued that the full harmonization approach should have been limited to the technical aspects of the withdrawal right, in order to avoid a reduction of consumer protection in some Member States. Finally, this paper shows that the CRD not always sufficiently takes into account the objectives pursued with the right of withdrawal as a tool to protect consumers concluding a distance contract.     

合同解释制度的法理分析

现代合同法解释出现了一些新特点。合同解释的目的不是纯粹的认识和描写,而是重在其规范的机能,即决定判决的基准。在合同解释实践中,法官是在运用而并非是援用解释规则。合同解释规则是在长期审判实践中形成的,但这些规则上升为法律规范,并形成合同解释法律制度是与解释学及法学理论的发展紧密相关的。     

Abusive contract terms: Is unenforceability a deterrent sanction?

European Journal of Law and Economics - We investigate the impact of sanctions in the presence of abusive contract terms in a litigation model under asymmetric information on consumers’...     

On the benefits of being naive: the choice of contract duration with projection bias

Empirical evidence shows that consumers are often subject to a projection bias, such as they exaggerate the degree to which their future tastes will resemble their current ones. Such biases are particularly acute when consumers commit to a long-term contract. This paper aims at assessing the consequences of projection bias and at defining when a legal intervention is relevant. In this perspective, we compare the situation of naive and sophisticated agents, both with and without regulation regarding contract duration and early termination fees. The demand side of the market consists either of sophisticated agents, who perfectly anticipate their future willingness to pay (WTP); or of naive consumers, who exhibit a projection bias. The supply side is a monopoly offering long- and short-term contracts. Our main contribution consists in showing that naive consumers are not always worse off than sophisticated agents. The key parameter is how willingness to pay varies over time. If consumers have an increasing WTP for a given service or product, naive agents can actually be better off than sophisticated ones. We argue that naivete protects consumers against a price increase. However, naivete also leads to less exchanges on the market, thus generating a deadweight loss. Hence, the overall effect of naivete on social welfare is ambiguous. As far as public policy is concerned, we conclude that regulating contract duration is only relevant in some circumstances, depending on the market characteristics and on the bias.     

浅谈谢绝自带酒水

不得自带酒水是一个老问题,但对它的认识确是空前的一致,无论是学界还是消费者保护的实践,都把它作为侵犯消费者权利的无效的霸王条款。笔者从消费者权利的界定和刨析入手认为该约定既不侵犯消费者的权利,又不违反合同法和其他相关法律的强制性规定,应当成为消费合同的有效的组成部分,消费者应当予以遵守。进而认为对消费者权益的保护应当以法律的理论和相关规定为依据,而不是朴素的感情。     

信托合同论——来自信托法适用角度的审视

本文认为,只有导致他益信托设立的信托合同才属于第三人利益合同,一些国家的信托法要求信托合同基本条款具备确定性、另一些国家与地区的信托法却无此要求且这一区别涉及到对合同解释制度的适用;一些国家的信托法确认信托合同为诺成合同、另一些国家与地区的信托法则确认这种合同为要物合同;一些国家的信托法有条件地确认信托合同具有强制执行力、另一些国家与地区的信托法却并未作出如此确认且这一区别涉及到是否允许委托人在订立信托合同后反悔。信托合同当事人与第三人的基本权利义务属于由信托法设定并为信托合同接纳的权利义务,受托人违反信托合同的赔偿责任属于向信托财产承担的责任。     

From fragile to smart consumers: Shifting paradigm for the digital era

The use of digital technologies, functioning thanks to data processing, has been conquering many sectors of the world economy and it is possible that, in the near future, only a few markets will still be excluded from this industrial revolution. Therefore, even if one chose unreasonably to disregard the many innovations that the digital economy has brought about, its development seems quite inexorable, although it is true that this new stage in human progress raises some concerns. In particular, many worry about the millions of passive and powerless digital consumers who, facing a few huge and influential companies without any education or awareness, could succumb and find themselves poorer, victimized, and manipulated. The paper proposes to react to this state of affairs without further fueling the fear of the digital revolution and without the thought that regulation can be used only as a shield to protect fragile digital consumers. Rather, by taking inspiration from some regulatory actions undertaken by the European Union, the paper bears in mind that regulation can be used as a sword in the hands of consumers to finally assign them a lead role in digital markets. New rules to empower consumers and to make them take autonomous and independent decisions as to the management of their personal data as well as to the merits of digital firms can be envisaged. After all, one of the cultural roots of Western societies is that every individual should be enabled to be faber ipsius fortunae.     

格式条款内容规制的规范体系

在规制合同内容的规范群内部存在着体系化的分工。格式条款内容规制规范不能适用于核心给付条款。其根本原因在于，市场机制通常虽不能作用于附随条款但却能作用于核心给付条款。这并不意味着核心给付条款就不受法律秩序的规制。对于不当合同的介入，通常需要合意度低下和均衡度不足两个要件的合力。合同法第40条的意义，在于将所有利用格式条款之情形的合意推定为程度较低的合意。如此一来，在对格式条款作内容规制时，便不再需要举证合意度的低下。     

格式条款标准化的垄断协议认定

传统的逆向选择模型将低质量格式条款的生成归因于需求端的认知缺陷;共谋模型将低质量维持原因解释为供给端的共谋,为反垄断法介入提供依据。格式条款标准化的横向垄断协议认定应满足《反垄断法》第13条规定的形式要件与效果要件,采用一般举证规则作为分析模式,由原告证明其"协议、决定或协同行为"形式及反竞争效果。形式要件以"形式与反竞争效果的尽可能耦合"为逻辑起点,应基于市场力的持久性与显著性标准加以重构。反竞争效果要件以对竞争的实质限制为标准,参照美国法实践,可通过质量或交易自由限制路径证成。     

默示的承诺与意思实现--我国《合同法》第22条与第26条的解释论

合同可依默示的承诺成立,也可依意思实现而成立,默示的承诺与意思实现均是由受要约人以行为表达默示的意思,然就二者的关系学说上素有争论.对默示的承诺和意思实现进行分析和比较,有助于对<合同法>第22条和第26条进行理解和阐释.