The Study On The Judicial Regulation Of The Standard Form Contract

All human behavior in the income for him at the same time, also make him pay. So is the standard form of the contract. The standard form of the contract,has improved transaction efficiency, realized the parties’ form of fair treatment, and reached the national macro-control economic purpose by the way to the administrative organ making templates. However,. the standard form contract, leads to the full body of freedom of contract, the contract justice fit the contract freedom of contract is completely the opposite of injustice, "equal subject" completely gone, "totally free market" has even been replaced by monopoly, the weaker party in a standard contract can not have sufficient information and may not have enough choice to choose relative parties, of course also not owned the fair rights of contract. Akashi Uchida so lamented "as a social phenomenon of death contract, is nothing more than loss of freedom of contract".To make the death contract "resurrect", the regulation of standard form contract is generally carried out in the world. From the initial industry association which established the model contract, after nearly a century’s exploration, states were constructed nationally appropriate standard form contract regulation mode. Legislative regulation, administrative regulation, judicial regulation, social regulation, begun to take shape. The characteristics of China’s economic system determines the scope of application of the standard form contract that is more extensive and more numerous involving industry for the standard contract, the market standard contract has covered all areas of consumer and commercial areas of life, we can say that we live in a world where the standard form contract.However, our country does not build the center clear standard form contract model of legal regulation,the legal regulation of standard form contract in our country is still at the initial stage of embarrassing. Study on the justice regulation of standard form contract is based on the reflection on the legislative regulation and administrative regulation, to fully affirm the role of judicial regulation, to introduce substantive justice of economic law idea into the standard form contract, with a broad vision of empirical research and the precise point, the implementation of the concept of economic law guiding role in the cases about the standard form of the contract in the analysis the typical case, seeking substantive justice judicial solution of unfair standard form contract,in order to achieve and seek a new contract just fit to achieve the goal of judicial path between the freedom of contract and contract justice.Throughout the study follow the clear syllogistic logic of the main line to start research,which is "Ask a question- analysis the problem- to solve the problem". Starting with the challenge of contract death theory, standard contracts on challenge of freedom of contract to ask questions,to answer standard contracts require regulation; and then to standard contract(Legislation regulation, administrative regulation, judicial rules, social regulation) introduction and comparative study of regulation mode, the proposed topic of this article-legal regulation form contract shall be judicial rules as the center, and the regulations and regulatory contracts were the definition and interpretation of economic law sense, basic judicial rules of the Legislation ought effects were analyzed for the content of judicial rules were clearly defined, the contents judicial rules defining the standard of the contract set into regulation, interpretation regulatory of standard contract, the standard of the contract validity regulation; and finally the core part into the article, that a solution to the problem stage, this section consists of three chapters from the set into the regulation, standard contract form contract interpretation of regulation, the form of the contract validity regulation III angles start, first systematic study of the basic theory, followed by the use of the Real efficiency analysis of quantitative statistics on the judicial rules of the reviews, then nine categories of typical standard contracts total 3937 cases for the study material, summarized unfavorable standard contract’s related legal issues to classify and analysis, the introduction of the standard form contract in the case of judicial philosophy substantial justice will be the type of economic law analysis of the legal issues in order to achieve the purpose of judicial rules form contract. According to this thinking, except for the introduction and conclusion, this paper is divided into five chapters.The first chapter raises problem- Challenge on contract death and standard contract. The basic question addressed is why the standard contract need regulation. The first section is the study on the death theory of contract, which form the fit to deviating s of contact freedom and contract justice. This section describes the theory of evolution and meaning of contract freedom and contract justice theory, studies the issue of fit with contact freedom and contract justice, including fit with the theoretical basis of the assumptions, then clear contract freedom and contract Justice departure inevitable, then analyzes reasons and manifestation for their departure.Section II studies the challenge of standard contract for contract freedom and contract justice. Appearance of the standard contract, leads to "equal subject" completely gone, "totally free market" has even been replaced by a monopoly, the standard contract is to ignore the interests of the weaker party,it’s mere shell of contract freedom, the contract justice fit the contract freedom of contract is completely the opposite of injustice, the grim reality is that the problem lies, the necessary research. This section studies the basis for development of standard contract, and the nature and concept of standard contract, features were defined and analyzed, and how challenging form standard contract and contract freedom and contract justice, due to it’s negative value.The second chapter is the analysis of the problem- Compare regulated manner and establish center position of form contracts’ judicial rules. First Section regulation defines sense and interpretation. Of economic law. First study the regulation theory, including regulation what; the theoretical basis of regulation, economic base, what are the political basis; how to regulate the classification. Then define the scope of regulation of economic law, the proposed regulation is the concept of economic law proposition and demonstrates this proposition from the essential attributes of economic law, objective method of adjusting the angle of the foundation and, form theoretical analysis of initial intervention and nonce again intervene from Civil Law; then proposed contract should be the role of the scope of regulation, proposed the concept of substantive justice to the economic law regulating the central point of the standard contract in the study of form contract interpretation of Law. Section II is regulating presentation and comparison of form contract, first introduced the Legislative regulation, administrative regulation, social regulation and judicial rules in four ways as well as national regulations form contract model, and in the four regulating difference and connection comparison, established the judicial rules centered form contract legal regulation mode. Section III is the study the general principles of judicial rules, Firstly, studied as a basis for judicial rules Legislation effect ought to foreign way of comparison, respectively opposition regulation ought effect from the model and analyze the contents of two angles; Secondly, the content of the division of regulation defines the form contract’s,this section consists of three areas from the set into the regulation, standard contract form contract interpretation of regulation, the form of the contract validity regulation.The third chapter, the fourth chapter, the fifth chapter are in order to solve the problem-- the set into the regulation, standard contract form contract interpretation of regulation, the form of the contract validity regulation,from the three angles to study the judicial regulation, how substantive justice idea of economic law as a trial about the standard form of the contract to guide the focus of the study.The third chapter studies the standard contract made in this regulation,this is threshold for judicial regulation, only clauses booked into the contract is binding. The first section studies the basic theory of standard contract, standard terms into contracts still need to follow the general rules of the offer and promise, but its incorporation into the contract process is special, which setting of standard terms into the contract is the focus of judicial regulation. Section II studies on the negative elements of setting standard clause into the contract, need to offer stage’s fully express and promises’ commitment can be in the contract. Negative elements third section on format clause into the contract, shall not be the "exception clause" and "terms and conditions of the individual contract contradict". The fourth section is the empirical analysis of standard clause into the contract, data analysis and reality effect evaluation basic first condition, and then the related legal problems of nine kinds of format contract classified research, because the fair principle becomes the main reason of determined standard clause, the problem of discretion become the focus of research.The fourth chapter studies to explain the regulation of standard contract. The part of theory researched specifically on: a narrow interpretation of the law, fill loopholes and value add three methods have been studied for their overall legal interpretation of the rules were introduced, the standard terms of the special rules of interpretation, including commonly understood rules, unfavorable interpretation of the rules, the use of non-standard terms rules were studied adverse explain the principles and rules of entry under the exemption clause was introduced. Do first empirical part of the basic situation analysis and data tables evaluation, and then grouped together in a study on nine categories of legal issues related to the form of the contract, due to generally understood as the main reasons for the unfavorable judgments form contracts counterpart, its discretion issue has become the focus of research.The fifth chapter studies the effectiveness of regulation of standard contract, this is the last check point of judicial regulation. Section I is basic theory of validity of contract, including the concept and the pattern of contract force. The second section is the effect regulation of standard contract, first study the void contract system, the void contract system of value evaluation, and distinguishes the absolutely void contract and relatively ineffective, all invalid was introduced and partially invalid. Then the classification study on the effectiveness of the standard contract invalid regulation, divided into standard terms violating jus cogens are invalid, blacklist invalid standard terms involved, gray list involved standard clause does not necessarily invalid, standard terms violating the contract law principles are invalid. Section III is a form contract voidable regulatory effectiveness. First study the contract voidable system, and then to format the effectiveness of the contract may be revoked regulations classify research into material mistake, gross unconscionability, fraud or duress by use position of vulnerability, did not fulfill the four scenarios tips and instructions can be Canceled. Section IV is the empirical analysis of the effectiveness of standard contract regulation. Do first empirical part of the basic situation analysis and data tables evaluation, and then grouped together in a study on nine categories of legal issues related to the form of the contract,due to whether let standard terms understood as the exculpatory provisions became main reasons for the effectiveness of it’s, its discretion issue has become the focus of research.