The Legislative Enlightenment Of Japanese Standard Clauses To China

The extensive use of standard clauses has greatly satisfied the characteristics of low cost and high efficiency of modern production and business activities.It has become an important development trend of contemporary contract law and a common choice of all countries in modern economic society.Standard clauses are different from the traditional contracting method based on "offer-promise".It is a clause which is formulated beforehand by one party without consultation with the counterpart,and the counterpart can only choose to accept or reject it.The appearance and widespread use of standard clauses make the traditional freedom of contract decline and the concept of "agreement" based on autonomy of will disappear.Therefore,many countries have been exploring new legal theories to regulate it.Japan's current civil code was formulated in the late 19th century.Although it was greatly revised in 2004,with the development of global economic integration,the property part is still not enough to cope with economic and social development.Therefore,the law circles and the government think that it is necessary to revise the civil code(debt law)comprehensively.In this revision,the standard clause system,as a new rule added to the Creditor's Rights Law,uses three clauses,namely "the agreement of the standard clause" in Article 2 of 548,"the expression of the content of standard clauses" in Article 3 of 548 and "the change of the standard clause" in Article 4 of 548,to stipulate the definition of the standard clause,the enactment rule,the content regulation,the right to request for disclosure,and the change of the standard clause respectively.Based on the latest legislative content of the standard clause in the amendment of the Japanese Creditor's Rights Law,this paper makes a detailed study of the relevant provisions of the standard clause in Japan in the light of various theories in the academic circles.China's provisions on the standard clauses are mainly embodied in Articles 39 to 41 of the Contract Law and Articles 6,9 and 10 of the Judicial Interpretation of the Contract Law(?),namely,the criteria of judgment and application of the rules of entry,interpretation and validity of standard clauses.Civil law is a law formulated for the future society.With the change of social and economic situation,the rules of standard clauses in our current laws are no longer suitable for the development trend of today's society.By taking advantage of the opportunity that our country is making amendments to the civil code(contract edition),on the basis of introducing the current situation and shortcomings of the standard clause system in our country,and evaluating the advantages and disadvantages of the two countries'standard clause system by using the comparative analysis method,this paper further puts forward the relevant provisions of the new standard clause system in the Japanese Creditor's Rights Law to give our legislative enlightenment.This paper is divided into four parts,which are as follows:Part one:overview of standard clauses.This paper mainly introduces the concept of standard clauses,including the appellation and definition of standard terms in various countries,the legal nature of standard clauses and relevant theories,mainly including contract theory,norm theory(statute theory,regulation theory),order behavior theory,factual contract theory and blank commercial practice theory.Part two:An Investigation of the New Standard Clauses in the Amendment of Japan's Debt Law.Firstly,it introduces the general situation of the comprehensive revision of the Japanese civil code(law of obligations),including the background and process of the revision.Secondly,it introduces the specific content of the newly added format terms in this modification,mainly elaborates from three aspects:the agreement of standard clause,the content expression of standard clause and the change of standard clause.Finally,the specific content of the newly added format clause is evaluated.Part three:The current situation of the standard clause system in China.This paper mainly introduces the definition of format clause,the rules of entry and the rules of validity of format clause in China,and analyses the shortcomings of this provision from three aspects.Part four:Enlightenment to China from the new standard clauses in Japanese Creditor's Rights Law.Based on the comparative study between China and Japan,in view of the shortcomings of the format clause system in China,this paper examines the new standard terms in the Japanese Creditor's Rights Law,and then puts forward some useful suggestions for me:to improve the legislative system,definition,entry rules,validity rules and change system of the standard clause.