Researches On The Standard Terms Under The Fair Principle

It might be unfair to underestimate research regarding the standard terms system in our country as many legal scholars have already performed relevant research on it. Both in theory and practice, the core attention of such scholars has been drawn to the "illegality" rather than "fairness". The word of "in violation of the legal provisions" would usually appear when the standard terms were to be identified to be invalid, and the word of "not in violation of the legal provisions" would usually appear when the standard terms were to be identified to be valid. This Interpretation might be of the reason that the current legislation stipulates the "illegality" and "fairness" in one legal provision rather than distinguishing them. In other word, the current legislation doesn’t spot the severability between the article 52, article 53 and the article 40. Such rules don’t have the legal source, judging from the perspective of the comparative law, thus can be deemed as the original in our country. However, this "unique" legislation not only causes the confusion of the legal interpretation, but also makes the position of the standard terms system in theory and practice to be wrongfully placed. Civil law can be divided into two kinds:peremptory norm and random norm. The terms violate the peremptory norm are invalid. This is shared by all the terms of the contracts, but not unique to the standard terms. When the effectiveness of the standard terms is determined, overly emphasizing of illegality will harm the status of standard terms as an independent system. Systems of standard terms is derived from the principles of fair rules, in order to prevent one of the parties which occupies a position of strength to set the unfair terms randomly under the name of "agreement". It should be noted that the "random" of the "random rules" is not unlimited. So when the effectiveness of standard terms is determined, it should be judged on the basis of the fair principles. This means that the existing legislation should be abandoned, and it should be determined under the fair principles. In other words, standard term itself doesn’t have any accountability, rather it has a positive effect for the development of the society. Only when the contract parties violate the fair princples, the standard terms can be determined to be invalid. Such case judgment can use the model which is similar to the hyperbolic model in the illegality judgment of tort law. We can set the X axis as the limitation of the disclosing party and set the Y axis as the unfair degree of the contracting process. Because of the defects of the existing legislation, relying on the law itself to make a case judgment under the fair principle is not possible. Meanwhile, the case judgment model gives judges more discretion, so it is necessary to make measures to restrict arbitrariness. Therefore, no matter in pattern implementation or in restriction does need imitation of foreign theory. According to the exiting modes, the German law mode forbids the terms of non-discretion and semi-forbids the terms of discretion. Such mode is more delicate than the legislation in our country. However, it also exits the problem of cutting the even at one stroke. The exiting research regarding German model is more in the introduction pattern rather than application, which illustrates the difficulty of inheriting German law. The American law mode seems more reasonable, which consists of procedural unconscionability and substantive unconscionability. At the same time, it can use influencing factors to limit the random. Therefore, drawing lesson from the American law can be an ideal way for the theoretic and the practical researches of the standard terms system in our country.