Research On Legal Regulation Of Standard Terms

Articles 496-497 of the civil code revised articles 39-40 of the contract law,indicating that the current legal regulation mechanism of standard terms in China needs to be adjusted.To study this topic,we should focus on the following three aspects: what is the legal regulation of standard terms? Why implement the legal regulation of standard terms? And how to implement the legal regulation of standard terms?If we want to make clear the connotation of legal regulation of standard terms,we should combine the definition of standard terms with the definition of legal regulation.According to Article 496 of civil law,the standard terms do not need to be used repeatedly,which is different from Article 39 of the contract law.Through such an amendment,the definition of standard terms is updated.The purpose of doing so is to identify the pre-determined terms of consumer contracts for one use only as standard terms and therefore respond to the wave of consumer protection.However,there are no restrictions,so it is easy to interpret too extensive.A more perfect definition can be referred to as follows: the standard terms are the terms that are prepared in advance by the parties for repeated use and are not negotiated with the other party individually at the time of the conclusion of the contract.Although the terms of consumer contracts are only drafted in advance for one use,they are also standard terms that are not negotiated with the other party individually when the contract is concluded.In addition,when defining the meaning of the regulation,we should promote it from the normal meaning to the professional meaning.Regulation refers to the flexible control exerted by the subject who controls the power on other objects,and legal regulation refers to the flexible control that the subject of legislation exerts on other objects with the help of law.In a word,the legal regulation of standard terms refers to the flexible control by the legislator with the help of the law is applied to the clauses that are prepared in advance for repeated use and are not negotiated with the other party at the time of contracting.Some pre-defined terms of consumer contracts for one use only are also listed here.Finally,it should be noted that the practice of using standard terms includes micro and macro aspects.The former focuses on the use of standard terms under individual contract relationship,and the purpose of contract law is to control the risk caused by the abuse of specific standard terms;the latter focuses on the socialization of standard terms,and the purpose of economic law is to prevent the risk of market mechanism failure caused by the abuse of standard terms.Therefore,the widestlegal regulation of standard terms should involve both contract law and economic law,but for the focus of research,the above definition of legal regulation of standard terms is limited to contract law.The reasons for the regulation of standard terms should be demonstrated from two aspects: the existence basis and the limited basis.In view of the basis for the existence of standard terms,the previous mainstream viewpoints to its "transaction efficiency improvement effect".However,the following questions can be raised about this argument:first of all,when the standard terms have already become the oppressive tool of users,why are the opposite parties willing to continue to accept it? Secondly,in the current period when standard terms are widely restricted,is the user's enthusiasm limited to this function?Undoubtedly the above views are not credible enough,so more reasons need to be found.From the perspective of the counterpart,when the standard terms are used,their interests have been improved in any case,and they accept these terms on their own,so the improvement result of this kind of interests belongs to Pareto optimality,which is the fundamental reason why the counterpart allows the standard terms to continue to exist.Moreover,based on the perspective of users,the standard terms meet the operational needs of the "hierarchical" structure of the enterprise.It makes the business of the enterprise be carefully divided,ensures that the power is always in the hands of managers,and reduces the decision-risk of business personnel,so it greatly strengthens the motivation of users.In view of the limited basis of standard terms,the dominant view points to the fact that the freedom and the fairness of contract break down.However,this view only grasps the surface phenomenon of the abuse of standard terms but does not touch the internal source factor-the party's behavior psychology.Based on different "cost-benefit" considerations,there are "motivation contrast imbalance" and "information contrast imbalance" between the two parties.The former shows that the user's motivation to use standard terms is far stronger than that of the opposite party,while the latter shows that the user has more abundant transaction information.As a result,"opportunistic behavior" and "rational neglect behavior" are inevitable.The former shows that the user is used to forcing the opposite party to accept the unfavorable standard terms,while the latter shows that the opposite party is unwilling and hard to resist the oppression.Further affected by the weakening effect of the accessory clause,the above two acts will eventually work together to empty out the autonomy of will and the fairness of payment.In addition,with the promotion of the socialization trend of the use of standard terms,the two acts mentionedabove will also lead to the result of "adverse selection" at the level of the market mechanism,and intensify the "trend of identity differentiation of private law subjects".Finally,the protection of the weak is as important as the autonomy of the will.In terms of the legal regulation method,the primary scheme is "formal regulation",which refers to the regulation for the contracting process,including "incorporation regulation" and "interpretation regulation".From the perspective of the world,the "rule of prompt and explanation" and the "rule of exclusion of unexpected clauses" are representative regulatory means.In the future,China should also absorb these two rules,and consider reducing the third sentence of Article 498 of the civil law to the incorporation rules,so as to form the incorporation mechanism of standard clauses in China's law.The "rules for prompt and explanation" can be expressed as follows:(1)if a contract is concluded with standard terms,the party providing the standard terms shall draw the other party's attention in a reasonable way,and shall explain the terms which have significant interests with the other party,such as exempting or limiting its liability,increasing the other party's liability and excluding the other party's main rights.Only when the other party can know and understand it,it is qualified.Otherwise,the relevant terms shall not become an integral part of the contract,except for those recognized by the other party.(2)A term made by law is exempt from the obligations in paragraph(1).In addition,the "exclusion rules for unexpected clauses" can also be referred to as follows: if the form or content of the standard terms is too abnormal to be reasonably expected by the other party,it does not constitute an integral part of the contract,except for those recognized by the other party.In addition,according to the common view,"objective interpretation rules","doubt is not conducive to the use of interpretation rules" and "strict interpretation rules" are representative rules.However,when these rules are conceived in detail,including Article498 of the civil law,they all adopt "user restrictionism",that is,on the premise of satisfying objective interpretation,the direct purpose of interpreting standard terms is to restrict users.However,in practice,the restriction of users does not mean the relief of the opposite party at the same time.Therefore,under the guidance of "user restrictionism",the application of the interpretation rules of standard terms is not absolutely oriented to provide relief for the opposite party,which is the ultimate goal of legal regulation.In the future,China's law should replace the limitation of users with the relief of counterpart.Specifically,it can be expressed as follows: in case of any dispute on the understanding of standard terms,it shall be interpreted according to the common understanding.If there aremore than two interpretations of standard terms,the most favorable interpretation shall be made to the other party.The meaning of the standard terms shall be interpreted in the narrowest sense unless it is unfavorable to the other party.As for the legal regulation method,the final plan is "content control",that is,the supervision for the content fairness of standard terms.As a supplement to formal regulation,content control reflects the development trend of private law in the current society,which is "from procedural intervention to coexistence of procedural intervention and content intervention",as well as "from autonomous control to the coexistence of autonomous control and state control".However,there are still scope restrictions when content control is introduced,i.e.,transparent core payment terms,terms deviating from mandatory norms,terms used within the core business scope of the enterprise,labor contract terms,articles of association,partnership agreement terms,terms based on laws,and terms based on international treaties,all of which are exempt from content control,but they are not exempt from the general content control of civil law at the same time.At the same time,price preference can't be the basis for standard terms to avoid content control.Furthermore,when constructing the content control mechanism of standard terms,the traditional system with the rule of private law as a single element is not reliable,and the new system of the rule of private law with the rule of administrative supervision is worthier of adoption.It takes the rules of private law as its internal core,thus establishing the standard of fair content of standard terms;at the same time,it takes the rules of administrative supervision as its external guarantee,so as to ensure the rules of private law have a universal realization.In other words,the rules of private law should include both the basic rules and the typed rules.The former should take good faith as the basic connotation,improper damage as the daily expression,transparency of terms and the purpose of the counterpart as the guiding elements,and the counterpart pursues as the legal consequences;the latter depends on the summary of practical experience.As for administrative supervision rules,common means include "model text","compulsory filing","administrative modification proposal","hearing","warning announcement when refusing to modify" and "administrative punishment".