Smart contracts, beyond the regulation of civil law contracts?

The uncertainty of the impact of smart contracts on the relationship with the law lies more in the lack of information it carries.

Written by: Sister Sa Team

Are smart contracts contracts? This is a question that has been debated in the academic circles. Sister Sa's team thinks this is a false proposition. Smart contracts and contracts are not at the same level, so they cannot be discussed together.

What is a "contract"? Cui Jianyuan's "Contract Law" regards a contract as a civil legal act. The contract takes the expression of intention as its element, and according to the content of the expression of intention, legal effects are given. In more popular terms, the law stipulates a series of behaviors, among which "contract" is one of them. On the premise of expressing the will of multiple parties, "contract" can cause the establishment, modification and termination of rights and obligations between equal subjects. . Therefore, we can conclude that "contract" is an abstract level, a legal act voluntarily made by both parties that affects changes in legal relations.

And what is a smart contract? We can simply understand it as code running on a decentralized computer that "never stops". In order to run this string of code, we need two steps, one is to write the code and deploy it on the decentralized computer; the other is that any subject can call this string of code, and the result is either simply changing a variable, or It is the transfer of digital assets. The design of smart contracts focuses on flexibility. Many jurists believe that the callers of smart contracts will have the same execution results. In fact, this is not the case. Centers such as "super administrators" can be realized through smart contracts' restrictions on signature addresses. Chemical contract function.

The deployment and invocation of smart contracts is just a factual act of objective reality. These factual acts contain some of the constituent elements of contractual legal acts and most of the non-legal acts. In order to explore how the smart contract is related to the contract, we abstracted the level of "information" to serve as a bridge from the smart contract to the legal act of the contract. The essence of the legal act of a contract is the circulation of information between the parties, and the content of this information circulation is recognized by the law, and the rules and forms of information circulation are regulated by the law. The information in the contract can be roughly divided into two parts, one is the information on the relationship between civil rights and obligations related to the establishment, modification and termination of civil rights, that is, the content of the contract, and the other part is the information on the agreement reached by both parties.

Smart contracts are integrated and multi-faceted. On the one hand, smart contracts formulated in different forms and environments carry information about the content of the contract; on the other hand, smart contracts also carry the expression of mutual agreement; A juridical act that gives considerable certainty in the performance of a contract.

**But we need to pay attention that the information in the contract does not come completely from the smart contract. **

In the B2B scenario, the two sides of the enterprise have conducted sufficient preliminary negotiations and may have signed a careful agreement. In the specific implementation part, a part of the content of the agreement is mapped into the smart contract, and a certain agreement is reached in the form of a smart contract. right to perform certain duties. At this time, the main information of the legal act of the contract, including the main content of the contract and the expression of intention of both parties, is injected into the document full of clauses in real life, and the information related to the legal act of the contract in the smart contract is thin or accompanying , more is to play its advantages in the implementation level.

At the B2C level, many Web3 project parties develop and deploy a smart contract. At this time, the smart contract carries more information about the legal behavior of the contract, and the agreement between the two parties is also reflected in the signature of the address. (The view that "electronic signatures can reflect the intention of the parties" has become the mainstream, so this article will not go into details, but some scholars believe that this expression of intention is insufficient and flawed, and requires smart contract parties to have more understanding of the contract. Full disclosure.) But even in this case, the smart contract cannot include all the information in the contractual legal act, such as the age of the parties, the relief method of the contractual legal act, etc. The former is contained in real life, while the latter is written in In the law, it may not be considered in the smart contract.

The uncertainty of the impact of smart contracts on the relationship with the law lies more in the lack of information they carry. For example, the existing smart contracts do not and cannot write the age of the parties into the smart contract. Under the legal framework, a considerable amount of information is supplemented by law, thereby breaking through the independence and self-sufficiency of smart contracts in the virtual world. Many scholars are more concerned about this independence and self-sufficiency. Indeed, there are quite a few ways to integrate law into the consensus, or write it into the code of the smart contract, to achieve the effect of "code is law" to ensure the virtual world independence, but the author believes that this independence does not conform to the development level of productivity at this stage, and requires too high a cost.

Under the premise that the regulatory environment of smart contracts is not completely virtualized, the way smart contracts carry contract information and its more "property-based" execution methods will indeed affect the legal relationship of contracts, but in the author's design Under this framework, smart contracts cannot completely subvert the contract law. For example, the smart contract "as" contract mentioned by many scholars does not need to set up the right of defense in law and the right of defense first. The author believes that relying on the advantages of smart contract execution, the design of execution rules and trigger conditions constructed by the parties will not lead to the issue of first performance defense and simultaneous performance defense, so there is no need to talk about these two rights at this time, but it cannot be said that the contract at the legal level In the legal relationship triggered by legal acts, the setting of this right is meaningless, it just will not be activated in this legal relationship. However, the uneasy defense right will still be activated. For example, during the 10-day execution of the contract, the contract caller suddenly finds that the project party has the possibility of a large thunderstorm. At this time, of course, it can be based on the legal relationship established by the smart contract , Citing the right of uneasy defense, filing a lawsuit to the court to suspend the performance of the contract, that is, to require the project party to suspend the operation of the contract or restore the assets to their original state.

Write at the end

This article is just a superficial but innovative thinking of Sister Sa's team on the theoretical issue of "the relationship between smart contracts and contract law". The emergence of new technologies does need to attract the attention of the academic community, and consider the nature of its adaptation to the existing legal system. However, it is necessary to start from the legal level to distinguish the influence and integration between specific technology and abstract law. Most of the technical problems can be solved under the existing legal framework.