Unfair Standard Terms In Consumer Contracts

In the 19 th century, wherever continental law countries (regions) or common law countries, the concept of contract has looked so deeply into the human min,every countries (regions) will be abidance by the basic principle of the contract freedom becomes.Therefore 19 th century was honored ‘ the century of contract'. As late 19 th century, the social economic had rapidly developed, the economic status of two parties was widening, the contract freedom was on the wane. Especially the standard terms were widely used, the big company entrepreneurs with strong economic strength harmed the contract freedom of consumers. ‘Most of the freedom of contract has become an unreal image'. Not only that, but the big company entrepreneurs exploit their professional knowledge and the standard terms to harm consumers interests. Usually consumers were powerless for what the big company entrepreneurs did.For these reasons, many countries (regions) had to pass legislation to limit freedom of contract. At the same time withing administration, these countries (regions) supervise and manage contracts contents. Contract justice and freedom of contract are equally important. According to the requirements of justice, the parties have the equal right to express themselves wishes when they are making a contract. In the process of the contract, the parties shall be in good faith and perform the obligations in accordance with the contract. They can not treat the contract as a tool for seeking unreasonable or even illegal interests. For example, In German, relating with the standard terms matters, the German Civil Code has a special chapter defining for this. In Japan,the consumer contract law has regulated of standard terms on the basis of the civil law basic principle.Since the 1990`s, more and more disputes of standard terms make lawmakers aware of the seriousness of the problem. They made new laws including <The Contract law><Consumers Rights and Interests Protection Law><Maritime Law><The Law of Insurance>,etc. These laws have a preliminary regulation for the standard terms. Though these current laws still have some problem in regulation, it is important for regulation the standard terms.This article mainly to discuss the object that unfair standard terms in consumers contract. This article has five parts including the general introduction, the judgment of unfair standard terms, effect of unfair standard terms, administrative regulation and judicial remedy.The first part is the general introduction for unfair standard terms in consumer contracts. It sketches concept of consumer contract, consumer, proprietor and the characters, difference between the unfair standard terms and unfair standard terms in consumer contracts. Then this article analyses current situation of unfair standard terms in consumer contracts and existing laws. Different laws have different regulation and issues for unfair standard terms in consumer contracts. This article will divide into three major part of substantial law, administrative regulation and judicial remedy.The second part is judgment standards of unfair standard terms in consumer contracts. And this part is most important in this article. This part inspects judgment standards from a comparative point of view, the judgment standard of the German law,the English law, the Japanese law,mainland China rules and the Taiwan region rules. Article 308,309 of the German civil code list ‘the black list' ‘the gray list' and Principled judgment standard to judge the unfair standard terms. England are specialized to act to make a provision for unfair standard terms. And article8 to 10 of Japanese consumer contract law list all kinds of unfair standard terms that content of these terms will cause a grave imbalance between consumers and proprietor. In accordance with Taiwan`s consumer protection law and the related rules, the concept of unfair standard terms is abstract content, judgment of unfair standard terms is subject to the discretion of the judge. And the Chinese mainland unfair standard terms including breaking article 52 to 53 of <The contract law>, eliminating operator responsibility or limitation of liability of operator and increasing consumers obligation,etc. But there are some conflict of Chinese law.The third part is the judgment of unfair standard terms of consumer contract effect. How to judge effect of unfair standard terms should consider comprehensively, and at the same time contract type, situation of concluding contract, whether or not the rights and obligations of both parties in contracts are balanced etc will be element of judgment effect. According to the effectiveness of unfair standard terms, these terms can be divide into two types: void and revocable. Generally speaking, the type of void terms violate mandatory provisions of law or they are possible to hurt consumers;the type of revocable terms do not be the severest injustice or be negatived the effect for proprietor fulfilling their obligation.The forth part administrative regulation of unfair standard terms of consumer contract. This part including inclusion and not inclusion review, standard terms records system,hearing system and administrative penalty system is in contractual performance important administrative regulation. Now our country has not yet set up specialized agencies to deal with matters relating standard terms. On the other hand, the lack of systematic administrative regulations would not protect consumers. So it`s important to improve the system of administrative regulation to protect consumers.The fifth part is judicial remedy for unfair standard terms in consumer contract. When large numbers of consumers are infringed, consumers can choice the mode of judicial remedy:class action and commonweal litigation. The present <civil procedure law of China> is included commonweal litigation and it need be further regulation. Class action is not included in <The civil procedure law of China>, comparing with representative action, the result is class action is much actual effect than representative action when large numbers of consumers are infringed.