Research About Several Legal Questions Of Form Clause

Content summary: The form clause is one kind of the contract terms, and we often touch it in our daily life. Because the form clause has been draft in advance by the dominant party, there are many unfair clauses among them and it often encroach the right of another party, therefore a large number of disputes have been caused. In view of the cases related to form clause in our country, the author think: In order to solve form clause dispute in practice, 3 key problems needed to be solved are: whether a certain contract term is form clause; whether a form clause has been included in the contract; Whether a form clause is effective after be included in the contract. (Another key problem of settling form clause dispute "the explanation of the form clause" has not been studied in the text.) In view of relevant regulations in China' s " contract law ": article 39, article 40 and article 41 stipulate a series of content that is correlated with to the form clause, and have constructed the basic frame of the form clause contract system of our country, among them, article 39 and article 40 are the definition, conclusion and validity of the form clause. These regulations not only offer the strong guarantee to the right of the consumers who are in weak economic status, but also prevent and limit the big enterprise to abuse the economic advantage damaging consumers' interests effectively, but as stated in this text, the above-mentioned provisions on form clause are simple and principle. In order to be different from the concrete legal principle and overcome the limitation with regular law, stipulating like this is certain flexible fuzzy, but its intension should not be defined too wide to make judge dare not to use the provisions, making regulations have been written in vain, or the administration of justice that carried on under the provision of this closing to " administration of justice without regulations". This opened the floodgates wide for the judge to destroy the order wilfully, therefore the result is unsatisfactory in practice. For the purpose to solve form clause dispute, on the basis of analyzing the current regulations of China's " contract law " and contacting our country's practice, this text instructs the thoughts of the theory guiding practice, draws lessons from the foreign legislation and prejudication, and carries on the discussion to these three questions. In identification of form clause part, the definition of form clause to foreign countries and our country the characteristic and some questions that should be noticed in identifying the form clause have been carried on research to solve some questions that make people puzzled; in concluding form clause part, on the basis of evaluation and analysis of article 39 of contract law, to the relevant regulations of our country's " contract law " are simple and principle, and difficult to operate in practice, how to make them specific has been discussed; in form clause validity part, the second and the third situation are focused on, it is to say that if the form clause is about the party offering the term trying to avoid responsibility when making the other side's bodily injury, or causing the other side's property loss because of intent or culpable negligence, and about the party offering the term avoiding its responsibility on purpose aggravating the other side's responsibility get rid of the other side's main right, it is invalid clause ; The question about the relations between article 39 and article 40 the way that our country take to the regulations of form clause validity and the question about definitely invalid and relatively invalid of form clause also have been studied in the text. In this paper, some views and suggestions are tried to put forward to, hoping of causing everybody to think much of the study about form clause.