On The Legislative Adjustment Of Standard Terms

As contract law in the twentieth century has new developments, the appearance of the standard terms has a tremendous impact on the traditional theory of contract law. This paper aims to explore the evolution of the modern contract law and the reason of the standard terms to be used widely, and the successful legislation experience on the adjustment of the standard terms from abroad, and how to legislate under the effective protection of consumer rights and freedom of contract principle. How to set up standard terms of the legislative model and legislative road of our country are the core content of this thesis.Firstly, the general overview of the standard terms, this paper discusses the concept and characteristics of standard terms and related concepts, including standard contract, standard form contracts, unfair contract terms. Then, the theory of control standard terms are discussed. Along with the development of modern society, economy, the inherent defect of the traditional principle of contract freedom is increasingly prominent. But modern contract law has turned to contractual justice from the value of freedom of contract, and the standard terms which is on the contrary to contractual justice is imperative adjustments.This paper discusses a continental law system of Germany and England as a representative of Anglo-American law system of standard terms legislation adjustment mode and the legislative contents. Allgemeine Geschftsbedingungen(the standard terms) first has been controlled in judicial case, as the cases accumulated Germany formulate the special legislation, and eventually embed into the German civil code in the debt. The German government had been always standing in the position of protecting consumers and controlled the standard terms which caused serious damage to consumer by means of special legislation. Britain began to control standard terms in case law. In1977 Parliament formulated the unfair contract law, thereby the unfair contract law provides the court mandatory statutory basis. The 1999 unfair consumer contract regulation has become the main regulation in the terms of controlling the unfair consumer contract.Based on discussing the current status quo of standard terms and drawing lessons from Germany and the UK legislation mode and content of legislation, this paper think about the future of the legislative model of standard terms in China. I think that China has primarily built up a standard terms legislation system, but there is enormous flaw and need an further improvement. In the legislative model, I thinks that We should legislate specially, but in views of the current special legislation proposals discussing this from the rough and holes of law system, I discuss it in the aspects of unity, and hope to provides another reason to support the special legislation. In addition, as regards the specific legislation road in China, China have not established judicial precedents system, thus it has limited functions when we depend on judicial precedents accumulation. But our current judicial interpretation has the character of legislation, I suggested to depend on the judicial interpretation before special legislation. the judicial interpretation of The supreme people's court has the function to materialize and meticulous, uniform standard terms.