以实质公平理念规制契约自由——以格式合同为例证

吉尔莫所谓的契约之死,无非是契约自由的丧失,也即和契约正义"合体"的契约自由的丧失。契约自由与契约正义由"合体"走向背离,是因着"主体平等"和"完全自由市场"在垄断的语境下不复存在。格式合同的出现成了契约自由背离契约正义的典型例证。在格式合同中,合意和选择失去了意义,契约自由背离了契约正义从而走向了形式正义的泥沼。将实质公平理念引入契约自由原则,或许能带来契约的再生。以实质公平理念规制格式合同,通过国家干预性质的立法、司法和行政手段实现格式合同中自由与正义的"合体"。本文以格式合同的典型司法案例为例证,研究了如何将经济法关于实质公平的价值理念引入格式合同的民商事审判,以探索一条如何达致契约自由与契约正义新的"合体"以及契约自由再生的司法实践路径。

To Regulate Contract Freedom with Substantial Justice Concept：Taking the Format Contract as an Example

The so-called death of contract by Grant Gilmore is nothing more than the loss of freedom of contract, which was once fitted with the justice of contract. When ＂equal main body＂ and ＂completely free market＂ ceased to exist in the monopoly capitalism period, fit phenomenon between contract freedom and con- tract justice had been turned into deviation. The emergence of the format contract has become a typical example of contract freedom deviating from contract justice. In the format contract, agreement and choice lost its mean- ing, so freedom of contract deviates from the contract justice and looks forward to the formal justice. Introdu- cing the substantial justice concept into the freedom of contract principle, it should achieve the regeneration of contract. Regulating the format contract with substantial justice concept, with state intervention in the legisla- tive, judicial and administrative measures, it is possible to construct the reunification of contract freedom and contract justice in the format contract. With typical cases as an example, empirical study has been done in this article on how to introduce the substantial justice concept of the economic law into the civil and commercial trial of the format contract, in order to explore the path of judicial practice about how to achieve the reunification of contract freedom and contract justice, and how to achieve the regeneration of contract.