论免费服务不能免责的民法基础

作为一种促销方式和竞争手段,经营者在销售商品或提供服务的同时附带性地提供某种免费服务愈来愈具有普遍性,然而其性质若何,理论上却有争议,这阻碍了对此种行为所致纠纷的解决。本文认为,此种行为在经济学上属于“有奖销售”的一种;在法学上属于被称作“单方允诺”的单方法律行为。它与经营者和消费者之间买卖商品或者授受服务的合同性质不同,后者是双方法律行为,但二者又密切联系,前者以后者为条件,是附条件的单方法律行为。

On Dissoluting of Responsibility in Gratuitous Service's Civil Law Base

As one of sales promotion ways and competition methods, operators provided some kind of gratuitous service while saling and providing services.This phenomenon became more and more universality. But aiming at its quality, arguments exist in theory. These disputes embarrassed to settle the dissensions making by the behaviors referred above. This article considers that such behaviour should belong to one of "sales on rewards" in economics, but in law it attaches to unilateral legal act, it can be named one side's promise. It is differ from purchasing and saling goods between the operators and consumers or the contract qualities of giving and accepting services. The latter is bipartite legal act.Still this, they have relations tightly. The anterior belongs to unilateral legal act with condition, the posterior is its condition.