书面契约取信制度研究——以签字、私章的取信能力为考查重点

Research on the Trust System of Written Contract——Focus on the credit ability of signature and private seal

"签字或盖章"是我国合同法所规定的书面合同取信制度,该制度未区分自然人和法人而一体规制,在实践中产生了有悖公平的不良后果。本文立基于法律史和比较法的角度,对书面合同取信制度进行了系统的梳理,总结了我国古代和国外书面合同的取信制度,在此基础上评价了我国现行合同法的相关规定。本文认为,私章自身的内在局限及签名取信的多维优势,决定了签名取代私章的必然;我国合同法应该明确规定,自然人主体书面契约的取信方式只能是签名。

＂Signature or seal＂ is the trust system of written contract in Chinese Contract Law. However, this system does not distinguish the essential difference between natural person and legal person, which brings the unfair consequences in practice. Based on the perspectives of the legal history and comparative law, the paper makes a systematical analysis of the trust system of written contract, and summarizes the system in China＇ s ancient law and foreign law, based on which this paper evaluates Chinese current Contract Law. It points out the signature will inevitably replace the private seal, owing to the limitations of the private seal and the multidimen sional advantages of the signature. The Contract Law of our country should clearly clarify that the signature would be the only trust system of natural person＇ s written contract.