Research On The Legislation Of General Provisions Applying To Service Contracts

Services play a vital role in modern economy.Contracts with the supply of service are also increasingly popular.Laws dealing with services have become an important legal phenomenon in modern society.Service contract is one of the basic types induced from the current legislation of traditional civil codes in civil law system,but service contract itself is not a typical contract in law.Because general principles in contract law and even general rules about legal act are mainly built on sales contract,which can not deal with service fully, the legislators usually take the following solution:on the one side,they try to make more common types of service contracts stipulated in order to regulate effectively;on the other side, they take one typical type of service contract as the supplementary law to mitigate the limitation of foreseeable types. For example,in the Code of Obiligation in Swiss and the Civil Code in Taiwan region of our country, contracts for the provision of services not covered by any other specific type of service contract are subject to the provisions governing agency. However, this legislative mode is not only constantly questioned in theory,but also has been often escaped to be applied in judicial practice.Since the nineties of the20th century,a trend to make service contract typical and to form general provisions on service contracts appears in some countries,such as ’Provision of services in generat’in Dutch Civil Code and ’paid services’in the Civil Code of Russian Federation.After entering the21st century,service contract is not only made typical,but also the technique of general&specific provisions is more comprehensively adopted,and general provisions are specially created in the representative legislative studies participated by a number of prominent scholars, such as ’the rules applying to service contracts in general’made in ’Principles,Definitions and Model Rules of European Private Law:Draft Common Frame of Reference’,and general provisions about ’rendering of Services’ formed in ’Basic Reform Policy (Draft Proposals) about the revision of the Law of Obligations’ in Japan. By contrast,not only general provisions on service contracts were not made in our current inlegislation,but also legislative suggestions relating to general provisions on services have not been provided in the three drafts of civil code prepared by many famous scholars in our country.Compared with goods,services have four main features which are different from goods,including intangibility,inseperability,heterogeneity,and perishability.In view of the main characteristics of services, and according to the ordinary way defining typical contract and related theory about service contracts service contract,service contract could be defined as follows:’a service contract means a contract where one party (service provider) receives remuneration from the other party (custmor)or,without remuneration, assumes the duty of providing service. If a business operator agrees to render a service for the other party within the scope of its economic operation, the other party is presumed to have agreed to pay reasonable remuneration for the service.’Employment contract, contract for work and mandate contract are all basic types of service contracts, but contract for work and mandate contract are fundemental to find the common law in regulating service contracts as employment contract has actually transcended the basic theory framework of civil law, and been particularly put into a special field of study with the rise of labor legislation.From the definition of contract for work in our current legislation,the requirements of contract for work include both the work to be finished and the result to be delivered.This definition indicates that contract for work in our country has a narrower scope.From the definition of mandate contract in our current legislation,whether legal act,or quasi legal act,or fact act,are all included in the scope of affairs to be handled. Mandate contract could be seen as supplementary rules of service contracts.But this kind of legislation is facing the embarrassment of application in judicial pratice,so it is essential to rethink the taditional legislative modes about service contracts and seek the change of legislative model.The best choice is to adopt the legislative mode of general&specific provisions and to form general provisions on service contracts in law-making.To consider general provisions on the the formation,performance,modification and termination of service contract, it is necessary to use the experience of the latest legislation research for reference actively,such as ’Principles,Definitions and Model Rules of European Private Law:Draft Common Frame of Reference’,’Basic Reform Policy (Draft Proposals) about the revision of the Law of Obligations’in Japan,and so on.lt is also essential to take our current legislation and judicial pratice on contract for work and mandate contract fully into account.As for the formation of service contract,pre-contractual duties to warn should be stipulated in the the formation of service contracts on the basis of related theory of pre-contractual duties and duty of provision of information and in consideration of the intangibility of services,but the duty to protect which is suitably covered by tort law should be excluded. With respect to the performance of service contract,it is firstly indicated that the principles of contract performance do not include the principle of personal performance and this principle should be established in service contract.To consider the content of service contract,the main obiligations and the collateral obligations should be discussssed respectively:on the basis of the law theory about means debt and results debt to be distinguished,the main obiligations of service provider should be divided into two different types:obligation of care and obligation to achieve result;As for the performance of the client’s obiligation to pay remuneration in the paid service contract, the doctrine adopted is payment after service and there is no room for performance at the same time;in connection with the features of services,such as inseperability,heterogeneity,etc.,it is necessary to specify common types of collateral obligations including the obligation to co-operate, the obligation to follow directions of the client,and the contractual obligation of the service provider to warn. About the modification of service contract,it is necessary to introduce the regulation of unilateral variation to general provisions on service contracts through pointing out that the customer’s right to modify the contract halfway is different from the type of contract variation stipulated in general principles.Concerning the termination of service contract,it is essential to stipulate the client’s right of discretionary cancellation in general provisions on service contracts by emphasizeing that the right of discretionary cancellation is also different from the statutory right to termination due to the other’s breach of contract in general principles,but the service provider don’t have the same right with the exception of free service contract.Based on the above research, the overall legislative proposals about the law-making of general provisions in our service contract have been finally put forward in order to provide some useful reference for the legislation about service contracts in our future civil code.