A Study On The Interpretation Of The Standard Clauses

The extensive use of the standard clauses is a huge challenge for the core of the traditional civil law theory----the principle of freedom of contract. Under the powerful voice"take it, or leave it."The essence of the freedom of contract has been greatly reduced, moreover, the justice of contract and fairness principle are hard to play its due role. Thus, the interpretation of standard clauses has become an important tool to balance the interest of both, and to achieve the internal justice of contract. Therefore study on the interpretation of standard clauses, talk about how to use it. Just for forming those who is in powerful economical position to make the standard clauses as a trading tool to oppress the relative in the name of the freedom of contract. To realize the essence of freedom of contract and maintain the justice of contract, it's the modern contract law's mission. So, in addition to the introduction and epilogue, the paper is divided into four parts.The first chapter introduces the basic theory of the interpretation of the standard clauses. Firstly, to clarify the general the theory of the interpretation of contract: the conception, the purpose and the object of it, and give a brief introduction of the general rule. Standard clauses is a part of the contract, the basic principles of contract interpretation and the basic rules still apply in the interpretation of standard clauses. Secondly, conducts the research to the standard clauses ' elementary theory, clarify the conception, characteristics, property of the standard clauses, because these are the presupposition of the study. At last, to focuses on the particularity of the interpretation of standard clauses, the standard clauses ' particularity has decided its interpretation basic principle and the rule particularity. Elaborate its special nature, purpose, mission, and point out the interpretation is key to control the standard clauses'use.The second chapter elaborates the legal basis of the interpretation's specificity of standard clauses, it is the soul through the article and plays an important role in the whole. Firstly study on the principles of good faith and fairness, which are the value orientation of the interpretation of the standard clauses, at the same time they are the fundamental guiding principles through the interpretation. And then discuss the relationship between the interpretation and the freedom of contract, the justice of contract, The extensive use of the standard clauses is a huge challenge the traditional civil law theory, concluding a contract by the standard clauses, just can achieve the external freedom and justice,it has violated the freedom of contract and the contract just essence spirit seriously. While, the interpretation of standard clauses is to rectify imbalance of the interest of both, to pursuit the internal freedom and justice.The third chapter discusses the specific special rule of the interpretation of the standard clause, it's the core of this paper. It contains three specific rules: objective interpretation, non-standard clauses first interpretation, contra proferentem. The author try to make an in-depth analysis, all the basic idea is defining the conception at first, then study on its application, analysis its limitations(matters needing attention) at last. These three special rules of interpretation in some countries'law have been recognized, since the standard clause tend to reflect only the unilateral means, the relative person who is in disadvantageous position need the law to give protection, in order to protect the interests of both sides in balance. Finally, describe the interpretation of the exoneration clause, it is the special one in particular, indicating its special principles and rules.The forth chapter explore how to improve the interpretation of standard clauses. Firstly, the author selected several typical countries (e.g. Germany, Italy, South Korea, United Kingdom, the United States), and the more influential international "European Contract Law" and "International Commercial Contracts," to conduct a brief introduction of their legislation. Secondly, discuss the present situation of the interpretation in our country: the problem in standard clauses'application is more serious, while the legislative is so simple, the author point out some defects in legislative about the interpretation of contract, standard clauses, and the interpretation of standard clause respectively. Finally, counter the defects talk about how to improve them, such as how to determine the order of the rules of contract interpretation, standard the contradiction of our country legislative to the standard clauses, clear the judgment standard of the objective explanation, carried out the purpose of shrinkage limit on the non-standard clauses first interpretation.