Analysis On The Building Of Unfair Terms In Our Country

The Contract Law of the People’s Republic of China and the Interpretation of the Supreme People Court on Certain Issues Concerning the Application of the Contract Law of the People’s Republic of China(three) in our country, use several clear and specific legal provisions to regulate the validity and interpretation method of standard clauses, this can protect the disadvantaged party of the contracting parties in some degree. The theory and practice of our country’s civil law don’t lack the pursuit of fairness and libertarian conceptions all the time, but the pursuit of one private conception may cause conflict with another private law value. Contract law practice is more complex, standard clauses are contract clauses that widely used in today’s society life, with the wide use standard clauses, relevant issues also appear continuously, the concept of unfair terms appear more often.At present, compared with some countries, such as the European Union, Germany, Britain, France and America, our country exist some legal gaps and loopholes in the regulations unfair of unfair terms in theory and practice, and we also lack relatively perfect regulation clauses. Although our country don’t construct a set of systematic legal system in the regulation area of unfair terms as the representative of standard terms, different department of law all have some scattered regulations about this, there are some effective judgment of unfair terms in juridical practice. Of course, the fact that relevant legal provisions regulations are inadequate, imperfect and the legislation is not systematic need to be improved urgently.Therefore, to comparative analyze and induce the regulations of the unfair terms in macroscopic theory, is the important premise for us to comprehend what unfair terms are and how to regulate the relevant specific disputes. This essay try to base on the relevant scattered legal rules and judicial practice of unfair terms in our country, to draw lessons from Britain, France and the United States in relevant regulations theory and practice, to comparative analyze the regulations of the “Black list” and the “Grey list” of unfair terms by the way of analyzing the specific provisions of the law in Germany and European Union, to analyze the specific forms of unfair terms. At the same time, by absorbing the research productions of the common law system which mainly cover America in the area of obviously unfair law terms, combining the substantive and procedural law, we can constitute a set of relevant law system which can regulate the unfair terms in our country, so we can reach the aim of regulating the unfair terms systematically.The focuses of this essay is to put forward the feasible proposal of regulating the unfair terms in the angle of legislation. The ideal way is to regulate unfair terms in the form of the judicial interpretations of the supreme people’s court, the structure of the judicial interpretations can draw lessons from The interpretation of the Supreme People Court on the trial of cases of disputes over a contract for the sale of the applicable law which is effective. The specific content of the judicial interpretations should draw lessons from the European Union in the regulation of the "Black list" and the "Grey list”, make the determination of the specific clauses more clear, and protect the unity and authority of the law. At the same time, we should also construct the law system both from substantive and procedural aspects, from judicial regulation, administrative regulation and social regulation angles, make regulations in the area of legal validity and legal liability, form a specific and clear regulated structure of unfair terms, truly make this judicial interpretation bring effect to the practice of civil law.The main body of the essay is divided into four parts. The first part simply introduces the defect of standard clauses and the absence of unfair terms system in our country, makes a definition of the relationship between the standard clauses and the unfair terms by analyzing them. The second part discusses the value and significance of unfair terms system, analyzing the important regulating role of the system and the necessity of building the system in our country. The third part describes the regulation theory and practice of unfair terms in the foreign countries, mainly analyzing the institutions about the "Black list" and the "Grey list" in Germany and European Union, obviously unfair system in America. The forth part is the focus part of this essay, it aims to optimize the construction scheme of our country’s unfair terms from the angle of legislation, it elaborates the specific content of the construction scheme in detail.