Comparative Analysis Of Germany And Chinese Judicial Regulations On Standard Terms

Standard contract was created by the time, at which human steppedinto era of monopoly, it was the product of standardized, specialized goodsand services. With its widespread usage a huge scale of transactions couldoccur rapidly at the same time, cost of transactions decreased to a very lowlevel, so it plays a very important role in modern economic life. But itsdrawbacks start to appear, as the provider of standard contract transfersunfair obligations to the relative party, abusing the power to draft standardterms, due to their weakness the relative party has to accept adverseconditions contained in the standard terms.At the beginning of this paper I shall go through the background andcharacter of standard terms, then analyse how the provider of standardterms use the relative party’s mentality to transfer unreasonable risks and todistribute rights and obligations of both parties, then I will come to thegood reason why we should regulate the standard terms. In the second partthere’s a comparative analysis of German and Chinese judicial regulationon standard terms, which consists mainly of rules of standard terms taken into the contract, the writer has cited a few cases in China and Germany，comparing the similarities and differences of review standards of bothcountries. In the third part of this paper the writer analyse the judicialregulation on effect of standard terms, how the judges apply the good faithprinciple and justice to the specific trail of standard terms to protect thelegitimate interests of relative party from being damaged, to maintainjustice and fair, values of the law. In the fourth part of this paper I havesome assumptions to develop our country’s present judicial regulationmeans, in other words, expanding the scope of judicial regulation ofstandard terms, in judicial practice the judges should enhance the reviewstrength of standard terms taken into the contracts, using the rules moreflexible, while determining the effect of the standard terms, the judgesshould jump out of the rigid thinking method, taking good faith and justiceprinciples into consideration, if the law doesn’t make a clear provisions.