智能合约的私法挑战与应对思考

Smart Contract: The Challenges to the Traditional Concepts Of Private Law

基于区块链的智能合约对代码自治领域的私法存在的必要性与可能性提出了挑战。去中心化结构的不可追溯、不可修改、不可救济与自执行性,表面上是对法之权威的蔑视、对法之主权的挑衅,实则是以颠覆性的方式对法之信仰的坚持,对法之原则的恪守及对法之功能的维护。法应社会需求而生,私法对智能合约应当抱持开放与包容的态度,积极回应科技对传统法律思维的挑战,根据其物理与逻辑结构的分布特点,采用灵活与创新的应对策略将其纳入法域的视野。

Born in the kingdom of code autonomy, smart contract based on block chain raises the concern of the validity of private law in the cyberspace. The de-centralized structure equips smart contract with non-retroactivity, nonmodification, non-remedy and self-execution, which are deemed as the evil characteristics threatening the jurisdiction of law. But these natures in fact, as the proxies of legal power, are the key elements maintaining a strong tie between smart contract and the ultimate value of law. Being an ostrich does not help with the cyber anarchy. An open and inclusive attitude towards smart contract is needed in the era of blockchain. It requires us look beyond the traditional scope of private law. There must be a road to the society as Lawrence Lessig described: freedom with anarchy, control without government, consensus with power.