Studies On Form Clause

form clause, the widely use of which is inevitable along with the development of market economy, has the advantages of simplifying trading links, saving trading costs, improving trading efficiency, accelerating trading security and so on, and its function in economic development may not be replaced. However, it also brings some problems, which primarily is that the advantaged party infringes the interests of another party. So it is worthy to research how to improve and perfect correlative legislation, make full use of its advantages in favor of economic development, effectively prevent the party supplying the form clause to abuse the freedom of contract and infringe the another party's interests and enhance the protection of disadvantages people. Except the foreword, this thesis consists of three parts.Part one introduces the basic concept of form clause, clarifying some misunderstandings about it. form clause is a term that is prepared in advance for general and repeated use by one party, and which is not negotiated with the other party when the contract in concluded. The two basic legal characters of it are not the repeated use and subordination, but its unilateral preparation and no negotiation. The freedom of contract of traditional civil law may become an excuse for the financially advantaged individuals to infringe the disadvantaged ones. It is not form clause but monopoly and unequal economic standing which seriously challenge the freedom of contract. The purpose of official restriction and intervention in freedom is to prevent the disadvantaged people to submit to the advantaged ones, ensure the essential freedom and equality and actualize the freedom of contract of both parties, so as to make full use of civil law to accelerate the development of market economy. That is the legal principle of regulation of form clause. Part two comparatively researches the typical form clause legislation in foreign countries, regions and international organizations on the rules, interpretation, content control, judicial proceedings, and administrative supervision and so on when a form clause is adopted in concluding a contract, the purpose of which is to explore its reference value to the form clause legislation system in China.In part three it is firstly discussed the current situation and problems in form clause legislation in China. Considering the legislative intent to accelerate economic development and protect the disadvantaged people's interests, the problems in correlative legislation in China, and the foreign advanced legislative experiences, it is proposed to perfect form clause legislation concerning the adoption, interpretation, content control, proceedings to relieve the other party's rights, administrative supervision and management and so on.