Comparative Study Of Unfair Terms Regulations Enacted In China And In Western Countries And Legal Issues Inherent In Some Insurance Contract Terms

Today, in daily life, most trade relationships that bind businesses and consumers are governed by a contract. A whole contract may be tailored to take account of the consumer's requirements like the contracts of specific goods or services of significant cost. However, the consumer has usually no option but to finalize the deal by means of a standard form contract. It's a contract between two parties that does not allow for negotiation, i.e. a kind of "take it or leave it" deal. It is often a contract that is entered into between unequal bargaining partners, such as when an individual is given a contract by the salesperson of a multinational corporation. The consumer is in no position to negotiate the standard terms of such contracts and the company's representative often does not have the autonomy to do so.This kind of contract consists generally in two parts:●The "General Terms and Conditions" (GTC) the clauses of which cannot be negotiated;●The "Special Terms and Conditions" (STC) which reflects the consumer's requirements.As a matter of principle, a standard form contract is potentially detrimental to the consumer, due to the unfair terms that could be inserted by the business in the GTC or (and) in the STC. Such a term is deemed "unfair" because it has "the aim or effect of reducing the consumers'rights under the ordinary rules of contract or the general law. They either stop consumers from making certain sorts of legal claim against the businesses which they could otherwise have made, or give the businesses rights against the consumers that it would not otherwise have had. This is how an unfair term is most likely to cause an imbalance-by altering the balance in rights and obligations that the law would have struck if left to itself. "A common willingness of lawmakers to curb the use of increasingly widespread unfair terms first appeared in the Western world in the 1970s. It aimed at limiting the abuse of power being committed by the businesses to the detriment of the consumers.The subject of the thesis is a comparative study of the unfair terms regulations enacted in some Western countries and their corresponding legal measures in force in China. The Western countries selected by the author are mainly France and the United Kingdom owing to the typical differences in their approaches to the unfair terms legal issues though both legislations should ultimately comply with the European Community Directive # 93/13/CEE set out in 1993. The comparative study mainly concerns commercial contracts.This thesis includes 6 chapters.Chapter 1 presents the legal definitions of unfair terms.Chapter 2 deals with the legal measures intended to stop the use of unfair terms by businesses. Note that the development of these measures keeps on being progressive given the multitude and diversity of unfair terms that render them hard to be interpreted in the context of each particular contract. This chapter also provides a brief outline of the unfair terms regulations in other western countriesChapter 3 looks into the existence of a qualified state body in charge of monitoring the regulatory compliance of contract terms. Since prevention of infringement is preferable to penalization, such a body is also responsible for assistance to businesses who wish it in evaluating the fairness of their commercial contract terms. In addition, during the process of lawsuits filed by consumers against businesses, a judge can rely on the recommendations of such a body to complete his trial.Chapter 4 deals with hurdles met during the course of the enforcement of unfair terms rules due to their diversity that may be encountered in the multitude of commercial contracts. Note that judges in court have the freedom to assess the unfairness of contract terms under existing laws. This chapter also deals with common legal sanctions taken against the businesses liable for the practice of unfair contract terms.Chapter 5 is especially devoted to some unfair terms frequently identified in life insurance contracts in France and in China.Chapter 6, as a conclusion, displays the synthesis of the results of the comparative study。 The increasing frequency of unfair terms occurrence in contracts between businesses and consumers is a phenomenon that seems far from being eliminated due to the standard form contracts being generalized and their changing characteristics related to the proliferation of new commercial patterns (development of electronic commerce also called "e-commerce" for instance). This requires a constant attention from the legislators and consumer associations and above all from the consumers themselves to keep up the lawful balance in rights and obligations between parties bound contractually.