Research On Substantial Law Regulation About Standard Terms

Traditional contract shall cover two stages of offer and acceptance,the contract is established by the two parties are agreed. But theemergence of format terms makes freedom of contract a big of challenge,format clauses are formulatedby a party in advance, there is no room tonegotiate, so it could easily leads that format terms provider woulddamage the interests of the other party by formulating unfair clauses.Format terms’ biggest drawback is that format terms violate contractfreedom and contract justice. Resources for format terms become aninevitable trend. All the time, countries regulate format terms toprotect the interests of consumers by the way of private laws and publiclaws, but because of disadvantages of the regulatingof public laws andit presents a trend of that private laws regulate format terms.Germany firstly mainly regulatesformat terms by the way of the civil’sbasic principle and formed a series of judicial precedents.Then Germanymakes the cases specific and systematic and establishes the law ofregulating general trade terms. The law regulates what is the format termsand how to become contract terms and so on. More systematically to protectconsumer interests, Germany abolishes the act of the general terms, itscontent is intact written into the new revision of the German civil codein2002, and format terms is regulatedby a civil code. South Korea’s regulation law in1986experiences10times revisions, it is not onlyeconomic law but also civil special properties. In terms of substantivelaw, the regulation about paragraph act draws on Germany’s the act of thegeneral terms, in terms of procedural law, it set up the fair tradecommission who prior reviews format terms and the court who reviews formatterms afterin order to more effectively safeguard consumer intereststhrough administrative measures. Japan before developing consumercontract law, mainly regulates format termsthrough administrative means.Japan formulated the consumer contract law in2001in order to avoidexcessive security administration, compared with South Korea, itcompletely eliminates administrative factors and mainly formedregulation mode on the basis of civil law principles.Countries form a relatively mature theory about format terms.Formatterms is a new thing and the research about it is late in China.We beginin the80s and90s in the last century and the research is mainly aboutintroduce of foreign related systems. In the mid90s, quickly developingof market economy promotes the study on contract law,and scholars beginto study format clauses, also laws and regulations,begin to regulateit.Although it is not very comprehensive, it still has the extremely vitalsignificance.This article is mainly based on our contract law’s39~41provisions.Itconcludes three problems: integration rules, explanation rules, forcerules and the article’s main body is divided into four parts.Chapter one is about the basic theory of format terms. First, we candetermine what kind of contract terms are standard terms through itsdefinition and characteristic. Standard terms refer to those terms whichare repeatedly used in many contracts, provided by the stronger party inadvance, without negotiation with customers. Second,the thesis expoundsthe essence of format terms, said that format terms is still the contract and the contract is the root of its binding. Third, the article analyzesthe scope of format clauses.It should be divided into commercial contractand consumers contract, the relevant provisions about the format termsin our contract law should be limited in consumer contract. Finally thearticle analyzes the advantages and disadvantages of format terms.On theone side, format terms can improve transaction efficiency and reduce cost,on the other side, the standard clauses may quietly erode and destroy thecivil law, contract law system and become a powerful tool for that thestronger in economy oppresses the weak without effectively regulatingstandard terms.Chapter two is about the legal basis of regulating format terms. Thereare two are legal basis of regulating format terms. The first is thatformat terms violates of freedom of contract. Format terms is worked outby one party in advance and the other party only fully accept or refusethem without negotiation. In order to limit clause providers is abuse ofdominant position, and balance the interests of both sides, we must limitmore format terms than traditional contract. The second is that thestandard clauses conflicts the justice. The final purpose of legislationis to realize social fairness and justice. However the format termsproviders often make a lot of unfair terms and force the other partyaccepting them.We should regulate format terms to ensure the impartialityof the contract in a certain extent.The chapter three is about the specific content of standard termregulation, including three aspects:integration rules, explanation rules,force rules. The prime principles involve fourAspects:1,the standard termprovider must prompt the format terms to the other party by reasonableway;2, the other party could understand and accept the format terms;3,the provider make necessary instructions for the format terms;4, theother party agrees that the format terms could be a part of the contract. Explanation rules mainly include external explanation rule, theexplanation rules against the provider and the explanation rule ofindividual terms priority. Force rules mainly discusses four criteria:standard terms which are maintained in blacklist are invalid, format termswhich are violating the force method are invalid, the format terms whichare listed in the gray are not necessarily invalid and standard terms inviolation of the basic principles of civil law are invalid.The chapter four is a summary, the author gives some modificationsuggestions about format terms’ defects in our Contract law based on theabove analysis,and put forward the proposal about legislative model offormat terms connecting with the foreign related legislation.