我国合同法定形式规则的检讨和完善

以内容为视角,我国合同法定形式规则呈现出以下特征：在适用范围上,覆盖面过广,变相形式强制现象严重;在法定形式种类上,书面形式占据主导地位;在履行治愈规则上,采用一般治愈模式;在后果排除规则上,鲜有诚实信用原则的适用。与此相对应,应采取三项完善措施：一是缩小要式合同之范围;二是扩大诚实信用原则的司法适用;三是提高适格履行治愈行为的标准。我国法定形式规则的完善应当在形式自由和实质正义间寻找平衡。

On the Study and Perfection of the Rules for Statutory Forms of Contracts in China

Based on content, the rules for statutory forms of contracts show the following features. First, the application scope is excessively wide and there are serious phenomena of forced disguised forms. Second, written forms take leading positions. Third, general patterns are adopted in practicing mending rules. Fourth, honesty-credit principle is rarely applied in result-exclusion. Correspondingly, we should adopt three countermeasures to perfect the rules. First, the application scope of offer-contract should be narrowed. Second, the legal application of honesty-credit principle should be enlarged. Third, the standard for applying mending rules should be made stricter. We should seek balance between form freedom and justice when perfecting the rules for statutory forms of contracts.