Validity Determination Of Exemption Standard Term

Exemption standard term has natural conflict.On one hand,it saves transaction cost.On the other hand,there is potential risk of getting interest from the opposite side by the provider of standard term who takes advantage of dominant position.In judicial practice,there is misunderstanding of the validity of exemption standard term,which deems all of the exemption standard term invalid.In fact,according to Article 39 and Article 40 in Contract Law of People's Republic of China(hereinafter referred to as Contract Law)and Article 9 and Article 10 in Interpretation of Supreme People's Court on the Application of Contract Law of People's Republic of China(?)(hereinafter referred to as Judicial Interpretation(?)of Contract Law),the validity of exemption standard term can be valid,revocable or invalid.Because Article 40 in Contract Law is the most widely used legal regulation,it is regarded as the center of this article.With the data analysis and different theoretical perspectives,some issues are explored such as the conditions of the invalid exemption standard term and whether the reasons for the defence for invalidity formed in practice is rightful.The precondition to judge the validity of the exemption standard term is if that contract term is standard term.Otherwise,it is not applicable by Article 40 in Contract Law.The concept of standard term in Article 39 in Contract Law is expressed as three key expressions: "re-use","draft in advance" and "no negotiation with the other party".The academic circle debates this issue unceasingly.The attitude in almost half of the courts is vague in judicial practice,which only apply the articles of law mechanically without providing specific interpretation.It is believed by the author that "re-use" and "draft in advance" are the purpose and time of the standard term,which should not be regarded as the main factors of the identification of the standard term."No negotiation with the other party" should be explained concisely as "detailed negotiation".The core of the judgement of standard term is the non-negotiability of the contract caused by the dominant position of one party.Therefore,for the two parties with balanced status and power,proficient professional quality and knowledge of legal risk,even though the conditions of "re-use","draft in advance" and "no negotiation with the other party" are fulfilled,this situation does not belong to standard term.There is connection and difference among the three key expressions in Article 40 in Contract Law: "exemption from responsibility","aggravation of the responsibility of opposite party" and "exclusion of major rights of the opposite party".The scope of "responsibility" should not go beyond the boundary of peremptory norm if there is clear stipulation in law.If there is no clear stipulation in law,relevant factors such as the consensus of the party,the purpose of the contract and the original idea of the legislation of the law need to be judged comprehensively."Aggravation" means to make the opposite party bear contractual obligations that should not been undertook.For the judgment of "major rights",there are different opinions in the academic circle.Combined with judicial practice,it is believed by the author that the right of competency and the right of demanding legal remedy of one party belong to major rights.However,right of preemption does not belong to the scope of major rights.There is overlap among "exemption from responsibility","aggravation of the responsibility of opposite party" and "exclusion of major rights of the opposite party",but "aggravation of the responsibility of opposite party" and "exclusion of major rights of the opposite party" are seldom combined and used independently.In judicial practice,"performed contract with no objection" and "business practice" are the most commonly seen standard terms.The provider thinks the standard term has effective reason for defence.Considering the integrity and trading efficiency of trading link of commercial affairs,the court normally deems this type of exemption standard term effective.The commercial contract and consumer contract are implicitly differentiated by judicial practice in the form of sentence,but the phenomenon of unequal status of the two parties in the commercial contract is neglected.Not all the commercial subjects have complete knowledge and sufficient recognition capability for risk in all business areas.In non-professional areas,there will definitely be unequal status between dominant position and inferior position.Therefore,the smoothness of commercial transaction should not be pursued blindly under this circumstance.Composite factors ought to be considered to judge whether the contract term has followed the equity principle to realize the goal of giving more solicitude for weak commercial subject.These factors include the rationality of the configuration degree of the rights and obligations in the contract term,integral value orientation of the standard term,contract character,purpose for contract,and rationality of the convention of the commercial affairs.