Studies On The Standard Contract

With the development of economy, which leads people to focus on the pursuit of efficiency, standard contract has been widely used. So it may be said that standard contract is the outcome of the large-scale and repeated trade, whose appearance has its own fundamental social background. Standard contract, on one side, has its advantages, that is to promote the efficiency of trade and to reduce the cost of trade. On the other side, standard contract has some obvious shortcomings, that is the party who provides standard contract, in consideration of its own interest, may assign the interests and benefits unjustly and unfairly between the two parties to the contract, which shall result in the infringement of the interests and benefits of the counterparty. Therefore, it is necessary to have a legal control on standard contract to limit its shortcomings.The thesis illustrates standard contract by dividing into three parts, besides the part of forewords and closing statements:Part 1 is an introduction of standard contract, which is incorporated by the following three parts: first, it analyses the meanings of standard contract in different countries and regions (including China Taiwan and the mainland of China) specifically, and try to make the relation between standard contract and standard clause clear. Second, the reasons and conditions of the existence of standard contract are analyzed. It concludes that the economical backgrounds is the enterprise monopoly and large-scale trades which resulted from the developed economy and the basic and fundamental reason for its existence is the pursuit of efficiency of trading party in the market. Third, based on the analysis of the meaning of standard contract and the economical background of its existence, the legal features of the standard contract are concluded, that is, repeat usable, non-negotiable, adhesive and others.Part 2 focuses on jurisprudence analysis on standard contract, which can also be divided into three parts: first, make a brief introduction of the different views of scholars in different countries and regions on legal nature of standard contract, without deep and specific analysis and pointing out that standard contract shall be discussed within the system of contract theory. Second, introduce the principle of freedom of contract, which is closely related to standard contract. The meanings of the principle of freedom of contract and its economical and jurisprudence basis are illustrated in this part, as well as the puzzles and challenges of the principle. Third, it is another important part of the jurisprudence analysis of standard contract. Illustrate that standard contract is against the principle of freedom of contract in some areas, however, in other areas, it is consistent with the principle.Part 3 introduces several methods and ways of legislative regulations on standard contract, which is another key point of the thesis. It has 3 parts: first, legislative regulation: after an introduction of the legislative regulations in the western countries and our country, make an specific analysis of the article in Contract Law of our country on standard clause and make a conclusion of the shortcomings of legislative regulation in our country and raise the solution measures. Second, judiciary regulation: judiciary regulation in each countries and regions having been introduced, analyze the specific methods of judiciary regulation in detail and conclude the shortcomings of judiciary regulation in our country and raise the solution measures. Third, administrative regulation: based on the experience of administrative regulation of each countries and regions, introduce the condition of administrative regulation in our country and raise the shortcomings of administrative regulation in our country and the solution measures.