The Study Of The Validity Of Standard Clause In China

“Contract Law”issued in 1999 provided rules concerning standard terms,arousing the enthusiasm in jurists for topics like the validity of standard term s of escape clause. In the year of 2009, the supreme court of PRC has made a response to the second edition of explanation of contract law. However, this explanation would not solves the way to fulfill the duty of tips finally, and cannot deal with the effect of format terms of escape clauses, which caused the debate on the tips duty and explanation duty as well. Some jurists hold different opinions about the elements when consider the tips duty, which is worthy to do research in the future.This paper adapts empirical methodology. In order to beneficial to the research of for mat clause, this paper will collate some relevant materials by looking through finding s and some other cases. By doing above steps, this paper plans to collate and carry out the terms of formatted clause.This paper includes 4 parts:includes some references as well as relevant materials.Part 1:The Current Legislation and controversies in standard terms. “Contract Law” stipulates that Where standard terms are adopted in concluding a contract, the party supplying the standard terms shall define the rights and obligations between the parties abiding by the principle of fairness, and shall inform the other party to note the exclusion or restriction of its liabilities in a reasonable way, and shall explain the standard terms upon request by the other.the second edition of explanation of contract law stipulates that when the party supplying the standard terms violates the obligation above,the other party shall have the right to request the people’s court to revoke the standard contracts while some jurists hold a different view that the consequence is that the standard terms should be deemed to have not been set into the contract.the second edition of explanation of contract law stipulates that explanation is part of the notice duty.However,explanation and notice are different in the function,the way,the purpose and so on.“Contract Law” stipulates that when the party which supplies the standard terms exempts itself from its liabilities, increases the liabilities of the other party, and deprives the material rights of the other party, the terms shall be invalid.The article 39 concern the standard terms exempts itself from its liabilities.There are different views on the understandingof the standard terms exempts itself from its liabilities in the different article.Part 2: Factors that influence the validity of the standard terms. By studying judgment instruments, I conclude that when we determine whether the format is invalid, the main contents should be considered are the legality, the balance and the rationality. In determining whether the party supplying the standard terms fulfilled the obligation to information and explain,many factors should be considered, such as the particularity of the contract, the degree of a bnormality,professional background,contract transaction history and so on. Then we should judge weather the party supplying the standard terms note the e x c l u s i o n o r r e s t r i c t i o n o f i t s l i a b i l i t i e s i n a r e a s o n a b l e w a y.Part 3:The theoretical analysis on standard terms.Judging the validity of standard terms,the content should be Considered firstly.When standard terms are under the circumstances stipulated in Article 40,the terms shall be invalid.Other wise,the parties should submit evidence to solve the problem whether the party which supplying standard terms perform the notice duty and explanation duty.When the party which supplying standard terms violate the notice duty or the explanation duty,the terms should not unfavorably affect the other party and the other party shall have the right to request the people’s court to revoke the contracts.Part 4:Legislative proposals to perfect the system of standard terms.I put forward four proposals. First,strengthen the obligations between the parties abiding by the principle of fairness and the principle of honesty and good faith. Second, the party supplying standard terms should not supply terms obviously unfair for the other party at the time when concluding the contract,or infringe legitimate in terests of consumers and workers, or the standard term shall be invalid. Third, refine the procedures of contracting standard terms. Format terms provider should consider the contract nature, the contract contents, the transaction practices,and so forth, to determine the specific ways of the described tips, except for the circumstance when the opposite party knows or should know standard terms of the content; Fourth, improve the standard terms of describing the obligated burden of proof, the provider shall bear the burden of proof for the duty of instructions, unless established to the contrary, the signature of the opposite party can prove that the provider has fulfilled the instructions obligations.