Comparative Study On Legal Regulation Of Standard Clauses

The formation of Standard Clauses is considered as the landmark event in the development of contract law in the 20th century. Subsequently, the regulation of Standard Clauses becomes an important subject in respect of contract law in all the countries, and it has also developed into an important trend for the development of contract law all over the world. First, this thesis gives an elaboration of the basic law concept and the necessity to exert legal regulation on Standard Clauses, and then following the comparative way, the author makes an comparison of the legal regulations on Standard Clauses in different countries. Eventually, integrating our national legal regulation status on Standard Clauses, the author brings forward suggestions and specific measures to improve the legal regulation of Standard Clauses aiming at filling in the gaps of comparative study on the substantive regulation systems of different countries.To view from the concept of basic law of Standard Clauses, there is certainty with the formation and existence of Standard Clauses. Compared with common contract clauses, the most essential features of Standard Clauses is that that they are formulated in anticipation by one party without consultation with the other party. The formation of Standard Clauses, which has both practical background and legally theoretical basis, is of high social and economic value. Just as fact that the formation of Standard Clauses has certainty, there is necessity with the regulation thereof. From the point of view of practical evidence, such necessity originates from the great limitation and deficiency in the Standard Clauses practice. Theoretically speaking, such necessity originates from the conciliation of the Standard Clauses with the classical concept of contract on the one hand, and the important legal value possessed by the Standard Clauses themselves on the other hand.The systematic comparison between our national legal regulations and those in other countries in respect of Standard Clauses shall be made in two layers: the layer of substantive regulation and the layer of regulation mode. The study on the former layer deals with the contents of the legal regulation of Standard Clauses, and the latter is concerning with regulation methods. After a comparative study on the substantive regulation, it is found that there are legislative loopholes, as well as legislative inconsistency and inaccuracy, with all range of regulation system from statue regulation to explanatory regulation and to effectiveness regulation. The status is in urgent want of prompt improvement. The comparative study of regulation mode shows that an effective legislative regulation mode of Standard Clauses has not been established in China; the judicial regulation thereof is in lack of initiative; the administrative regulation thereof is just not functioning, all of which are far from meeting the demand of practices.The borrowing of foreign legal regulations of Standard Clauses shall be based on the results of comparative study with reference also made to our national situation. In macro design, substantive regulation shall be combined with regulation mode; procedural regulation shall be combined with substantive regulation; strong regulation of consumer contracts shall be combined with proper business contract; compulsory regulation shall be combined with flexible regulation and general regulation; legislative regulation shall be combined with judicial regulation and administrative regulation. In the aspect of method, we shall insist on the guidelines of proceed in progressive steps and set up the regulation mode fit for our national standard clauses situation; strengthen the initiative of judicial regulation through the establishment of classifying analysis of judicial cases; remold the administrative regulation of standard clause in our nation with effort made mainly to the protecting of interests of defensive department and industry.