Study On The Legislative Restriction On The Effectiveness Of Standard Clauses

Terms is subject to the repeated use of pre-prepared, and consultation with each other in the time of the contract terms. It is the format to improve the efficiency of the transaction terms, saving the cost of the transaction, clear allocation of responsibilities. enhance the security of its value in today's society to be used in large quantities, but its shortcomings should not be overlooked : In real life, Terms of providers are often prepared in the format of the terms that are conducive to their own detriment of the other provisions, The rights and obligations of the contract for the irrational distribution, the relative harm the interests. The emergence of such ills is the right format provides for freedom of contract abuse by the results. Therefore, in order to rectify the situation, the law must provide the necessary interventions, from the legislative, judicial, administrative provisions effectiveness of various ways to format restrictions. This article is from other nations in terms of format, based on the method of legislative restrictions. "Contract Law" on the 40th of the recommendations to rectify the defects.Enlightenment countries in the introduction of this form of legislative provisions for a lot more restrictions, note that the scope of this study, only the format of the contract terms consumer research, Terms of the contract were not commercial research.This paper is divided into three parts in the body, according to ask questions, analyze problems, the ideas for solving the problems start. First, the format of the terms of the necessity and effectiveness of legislative restrictions, Then, the world of legislation restricting format of this effect in terms of the three methods. My final solution to the "Contract Law" -- the provisions of Article 40 of Correction.The first part is written, the text format and the need to limit legislative terms of effectiveness, the text format of provisions that violate the principle of freedom of contract, breach of contract principles of justice. Terms tremendous damage to a relative's contractual right, it is necessary to limit its effectiveness. restrictions on the most basic means turned around legislative restrictions. Terms of the legislative restrictions on the effectiveness of the real purpose of the contract is to pursue justice. Specifically pursuit format is the equivalent compensatory payment terms of the parties. rational distribution of the burden and risk of social and ethical interests of the community as a whole without injury.In clear terms of the effectiveness of legislative restrictions on format, The second part details of the text adopted by the three methods that legislative restrictions rigid constraints, flexible and broad restrictions limit law. Rigid restrictions on the merits of the law is the law clearly provides for the contracting parties to the limit also increased the efficiency of trials, this method is mainly manifested in the following two aspects : One of the provisions included in the blacklist invalid format; Second, the format for violation of mandatory law provisions invalid. However, there are shortcomings in the law is not rigid restrictions will limit the terms of all invalid format. Restrictions in the law can be flexible to some extent make up for this shortcoming. Based on the law of legislation restricting flexibility analysis, Also with a specific case further expounded the meaning of the elastic limit. However, the method is still enumerated up to the general principles of the role, therefore, Next, the third method -- summarized in this paper also introduced restrictions on the law. This is the second part of the focus This paper introduces the general cited two legal principles that limit public order and good morals and principles of honesty and credibility, followed by a comparative analysis of them, come to the conclusion : Whether from the perspective adjustment range from the protection of legal interests, it or from the specific application perspective, the principle of good faith is more suitable than the principle of public order and good morals clauses limit the effectiveness of the format. However, in view of the highly generalized and abstract principles, the paper also pointed out the specific application of the principle of good faith in four cases : clients pay grossly unequal terms invalid format; unreasonable risk provisions invalid format; Terms arbitrary violation of the basic principle of the law is null and void. hinder the achievement of the purpose of the contract clause is invalid format.The third part of this paper, the idea of solving the problem, in reference to the above three methods on the basis of limited, This paper discusses the "Contract Law" and the significance of the 40th of Correction. The first part of the "Contract Law" that the significance of the 40th, Terms shall limit the effectiveness of the uniform rules Terms of the effectiveness of more comprehensive restrictions and adopt "provisions that" the legislative basis for the legislative lines of science. After a detailed exposition of the 40th Correction : First, the adjustment of the 40th position in the "Contract Law"; Secondly, Article 40 of the introduction of the format in terms of the broad effect; Third, the revised Article 40, eliminate the conflict between provisions; Fourthly, the introduction of judicial interpretation to Article 40 of the specific contents; Fifth, the introduction of judicial interpretations. clear terms of format changes revocability.The paper concludes with some of the above in addition to a comprehensive, also focused on the effect of the legislative provisions restricting format model Terms and that no special legislation should be enacted. and the "Contract Law" should be amended and promulgated by means of judicial interpretation of the "Contract Law" for the 40th Correction . In sum, this paper introduces the format of the various legislative restrictions terms of effectiveness, light of the actual situation in China and the 40th of the "Contract Law" to rectify the deficiencies and recommendations We hope that this paper will explore the effect of legislative restrictions on the terms of improving our format modest way. judicial practice and look forward to future help.