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合意是合同成立的核心要素,其外在体现为缔约方同意。从历史演变的角度来看,罗马法要求缔约方通过严格的问答形式对合同内容加以确认。古典合同法剥离了罗马法中不合理的形式要求,但同意仍需包括形式和实质两个方面。随着交易的日趋复杂和频繁,现代合同法在一定程度上缓和了对于同意的要求,尤其是对互联网语境下的格式合同,司法裁判中对于这类合同的同意认定主要考察形式上缔约方是否作出了明示的同意,除违反《合同法》第39、40条的情况外,对于缔约人的内心真意在所不问。司法裁判中这样的认定与现实情况脱节,不利于保护缔约人权利。为了应对这种新兴合同形式给合同法理论和实践带来的冲击,本文认为应从立法、司法、行政三个角度对互联网格式合同使用方的披露义务加以规制。
Consensus is a core element in the formation of the contract, and its external manifestation is that of the contracting party. From a historical evolution perspective, the Roman law requires that contracting parties confirm the contents of the contract through rigorous question and answer. The classical contract law peeled off the unreasonable formal requirements in the Roman law, but the agreement still needs to include both formal and substantive aspects. With the increasingly complex and frequent transactions, modern contract law to some extent eased the requirements for consent, especially for the format contract under the Internet context, the judicial review of such contracts agreed that the main form of inspection on the parties Whether express consent was given or not, except in the case of violation of Articles 39 and 40 of the Contract Law, we did not ask the innermost truth of the contracting parties. Such determination in judicial adjudication is out of step with the reality and not conducive to the protection of contracting rights. In order to cope with the impact of this new form of contract on the theory and practice of contract law, this paper argues that the disclosure obligations of parties using Internet format should be regulated from the perspective of legislation, judicature and administration.