On Demarcation Between Model Contract And Standard Form Contract

Model contract is drawn up by the government authority in advance and is characterized by immobilization and standardization and also it is applicable to the majority repeatedly.Standard form contract is also drawn up in advance and is characterized by immobilization and standardization.It is regulated in paragraph 2,article 12 of Contract Law of People's Republic of China(hereinafter referred to as Contract Law)that the parties can enter into a contract in reference to the model texts of various contracts;beyond that,there are no regulations on model contract.Although there are regulations on standard form contract in article 39 and 40 of Contract Law,they are sketchy,leading to the conflicting understanding of scholars and juridical practitioners;in particular,different scholars have different opinions on the characteristics of standard form contract.Due to the coarse and crude legal regulations,some courts identify Contract of Real Estate Purchasing signed by developer and home buyer in accordance with Model Text for Contract of Real Estate Purchasing as standard form contract in juridical practice.Although there are similarities between model contract and standard form contract,they belong to different levels.Model contract is drawn up to balance the benefits of weak and strong parties and thus its theoretical basis is contractual justice principle.Standard form contract is developed with the development of economy to facilitate the transactions with indefinite people and thus its theoretical basis includes contractual justice principle and transactions cost effectiveness principle.The characteristics of model contract include drawing up in advance,reusability and relative negotiability.Characteristics of standard form contract also includes drawing up in advance;however,the drawing up in advance of model contract is not equal to that of standard form contract.Drawing up in advance of model contract refers to the drawing up by government authority and standard form contract is generally drawn up by provider of standard form contract;of course,it can be drawn up by a third party,such as industry association and government authority.In such case,the provider of contract terms must have the subjective intention of introducing model text into contract so as to meet the characteristic of drawing up in advance in standard form contract.Reusability is the economic function of standard form contract instead of legal characteristic and thus it is not an indispensable characteristic.The standard form contract is stipulated because the strong party can arbitrarily impose some unfair clauses on the other party without negotiation by virtue of its monopoly position.During the signing process,the will autonomy of the opposite party is weakened and it is affiliated to the provider of standard form contract;hence,the standard form contract reveals non-negotiability,which is the basic difference between model contract and standard form contract.In addition,standard form contract often leads to unequal rights and obligations of both parties.The Contract of Real Estate Purchasing fails to match with drawing up in advance and non-negotiability of standard form contract and thus it actually does not lead to the imbalance of benefit between developer and home buyer;hence,it shall not be identified as standard form contract.Contract of Real Estate Purchasing shall not be identified as standard form contract,which will not necessarily lead to adverse situation of home buyer.The home buyer,namely the weak party can be protected through contract interpretation.In terms of principle of contract construction,there have always been disputes on subjectivism and objectivism and objectivism that places extra emphasis on trust protection has occupied a leading position because Contract Law has laid an increasing emphasis on transaction security maintenance.Objectivism emphasizes that contract should be interpreted on the basis of the comprehensive ability of a rational man.Moreover,according to the methods in contract interpretation,such as semantic interpretation,system interpretation and special rules of contract interpretation,the Contract of Real Estate Purchasing should be interpreted to the disadvantage of developer if it is not conducive to interpreting rules of clause provider.A more safe method for restraining such disputes is to set up reasonable model texts by government authority.