Legislative Restrictions For Format Terms Force

The appearance of lease way of conclusion contract which was in the form of Format terms has reduced the negotiations and consultations process, and lowered the transaction costs, so it has its upside. However, it has some suspicious drawbacks: in our normal life, the form legal providers usually draw up some clauses that are beneficial to their own people instead of the relative, and irrationalize distribution of the rights and obligations of the contract. While the relatives can only say yes or no without room for consultation. Consequently, it hurts the relative benefits. This thing appeared because of the abuse of the civil right by the provider. Therefore, it has important theory significance to study on Legislative Restrictions of Format terms Force.This thesis is divided into 3 parts.In part-1, to describe the necessaries of Legislative Restrictions of Format terms by analyzing Format terms drawbacks. Format terms deviate from not only freedom the principle but also the fair, so that it does much to undermine the relatives'rights defined in contract, so we must restrict the force. Many nations adopt restricting Format terms force in different ways, e.g. legislative restrictions, administrative restrictions and judicial restrictions, among which, the basic one is certainly the first one. By it we can control the Format terms content from top to bottom in an effective way. Let the both parties pre-know their rights and responsibilities. Meanwhile, a legal backing of relative was supplied for courts'judicial activities. As well as other legal systems,"Legislative Restrictions of Format terms Force"can also be understood by referring to its purpose. It is a matter both of theory and practice; it is a matter both of justice and fair; it is a matter both of legal order and stability of society. With the above aspects, we draw a conclusion that presuming really justice is its main aim.In part-2, it is introduced to the methods of Legislative Restrictions of Format terms. Many countries have put it into effect by legislative restriction nowadays, and they use different ways, e. g. to enact special legislation, revise Civil Code to add corresponding things and by Consumer protection laws. We can see that they have commons namely rigid restrictions, elastic limit and broad restrictions. What is so called rigid restrictions means to list the void terms and prescribe some certain terms. In such condition, the Format terms has absolutely no effect. Concretely, its application in rigid restriction has two parts: i, blacklisted ones; ii, contradicted ones. It is advanced with specific guarantee in law, saying some are void and some must be prescribed. If it were disobeyed, it would be voided. It limits the act on both sides for contract parties to define terms and contract, and guarantees consumer rights by preventing the clause providers using their economic strength. Without this kind of terms, the justice can be made more effectively. The shortage is: we are not able to list all of the void Format terms or to define possible terms rules met in every contract with the widespread use of it. The elastic limit means to list some clause, which are inappropriate when we enact laws and define their effectiveness only by the courts, i.e. courts have the last word. Whether such inappropriate is effectiveness or not is decided by the courts'justice. That is it should be decided by the judge. This is the right difference between rigid restrictions and elastic limit. With its extensive coverage, elastic limit has repaired rigid restriction's deficiencies, however, it still uses the listing way and ignores general principles role, lacking of a comprehensive norms for Format terms. Broad restriction is something to consider an abstract principle by law as a basis for restrictions format terms, that is disobeyed ones are useless. Different with rigid restriction and elastic limit, broad restriction doesn't list directly the void format terms or the inappropriate ones, it just stipulates a general principle for judging the format terms, in order to plaster over the cracks and adjust the scope, offering a format term judging ground when they can't find an appropriate term. Looking at the various legislative districts cases, we often used two main principles: Principle of public order and good customs and Principles of Good Faith.In part-3, to concretely analysis Legislative Restrictions on format terms, pointing out the drawbacks and the improvement suggestions. In our country, we have three law basics to restrict format terms before Law of Contract go into force: one is General Principles of Civil Law, one is Consumer Protection Law came out in 1994,a third one is format terms force the rules in the area of transaction made by other special laws. But all these three kind of laws have their insuperable defect. For example, General Principles of Civil Law is too general, lacking of specific rules for format terms; Consumer Protection Law is more specific, but it is too simple, and not of scientific; special laws are too narrow of scope, without latitude of generality. Against this major background, the 40 article in Law of Contract gives common and specific principles to court when they are restricting format terms and it balances the poor ones. While according to this study, the author found that Article 40 in Law of Contract though a significant one was not without its drawbacks. Hereby the author points out five and proposes some revisions. And he thinks we should amend to adjust Article 40, Law of Contract, introduce general restriction and disburden provisions of contradictions. While for the vague enactment about the main rights, and the refraining from saying yes or no of flexibility and reversal in format terms, they can solve it by judicial interpretation.