“假一赔十”的法律效力及其适用

The Legal Effect of “Fake one Lose ten” and its Application

论述了"假一赔十"的法律性质与效力。这一问题历来备受学者争议,作为经营者的意思自治条款,其内容既不违反法律法规的禁止性规定也不违反公序良俗。认为"假一赔十"作为附条件单方允诺行为弥补了"要约邀请说""要约说"的缺陷,更能平衡经营者与消费者的权利和义务。基于私法自治和外观主义原则,其法律效力应当予以肯定,但是在具体适用上裁判者理应处理好惩罚性赔偿、赔偿幅度问题。

The legal nature and effectiveness of “Fake one Lose ten” has always been subject to scholars controversy. As the operator s autonomy clause, its content does not violate the prohibition of laws and regulations nor violate public order and good customs. It is considered that the “Fake one Lose ten” as a conditional unilateral promise has made up for the shortcomings of “invitation to say” and “offer”, and can better balance the rights and obligations of operators and consumers. Based on the principles of private law autonomy and appearicism, its legal effect should be affirmed, but in the specific application, the referee should properly handle the issue of punitive damages and compensation.