The Improvement Of The Invalid Rules Of Unfair Format Clause

The invalid rules of the unfair format clause in Article 40 of the Contract Law have the defects of deviating from the legal logic of the invalid legal system and neglecting the commercial practice,so that the judicial judgment is chaotic.The judgment results are obviously inconsistent between the position of one side falling to the point of protection of the weak and the position of properly considering the rational operation of the enterprise.This paper intends to provide a method for the invalid rules of unfair format clauses from the two dimensions of legislation and justice.In addition to the introduction and conclusions,this article includes the following:The first part: From the legal theory level,the author analyzes the reason for the deviation of the invalid rules of the unfair format clause from the adjustment logic of the invalid legal system,and blames the dislocation that is the original intention of the protection of the weak and the legislative expression generally applicable to the regulation of all civil and commercial format clauses.Integrating commercial thinking into the legislative and judicial practice of the format clauses,and discriminating the format clauses in civil and commercial contracts,thereby correcting the misplacement of the original intention of the unfair format clauses and the legislative expression,and easing its departure of the legal logic of the system.The second part: The author examines the judicial application of the invalid rules of the unfair format clause from the macro perspective and the micro perspective,and finds that the rule is generally applicable to civil and commercial contracts on a macro level,and the effectiveness of civil and commercial disputes is different;micro From the perspective of the specific reference factors in the judges' determination of the validity of the unfair format clause,the authors conclude that the reasonable unfair format clauses are effectively identified,and the specific criteria for unfair format have specific and pluralistic characteristics.At the same time,the author found in the case of judging judicial practice that judges have contradictory decisions on similar format clauses,mainly focusing on express delivery business and insurance business.The third part: The author makes in-depth reflection on the contradiction ruling inpractice from the perspective of legislative technology and commercial thinking.The validity of the specific format clause in judicial practice is arbitrary,and it is blamed on the abstraction of the invalidity standard of unfair format clause.And the absence of commercial thinking in legislation and justice.The lack of commercial thinking in the legislation is mainly reflected in the broad scope of the application and the homogeneity of the validity of the unfair format clauses of civil and commercial matters.The lack of commercial thinking in the trial mainly reflects the weaken concept of commercial trials.The fourth part: put forward corresponding suggestions for the inadequacy of the invalid rules of the unfair format clause,mainly from the two dimensions of legislative technology and legislative thinking.At the legislative technical level,the criteria for invalidation of unfair format clauses are further clarified: for the rights and obligations responsibilities set in the format clauses,in the case where the law has been allocated corresponding regulations,the arbitrary regulations shall be obeyed.If the law does not provide for it,it shall conduct a comprehensive review based on the purpose of the contract,the principle of equality and mutual benefit,common sense,and social effects,etc.In the legislative thinking,the commercial thinking of the invalid rules of the unfair format clause should be integrated,and the integration should be integrated from two aspects: the first aspect,the scope of application of the unfair format clause invalid rule is further refined,and the reasonable unfair format clause Exclusion of regulations,thereby weakening the space for state involvement in private law autonomy.The specific reasonable unfair format clauses are mainly manifested in the affidavit clause and the format clauses adopted by the enterprise based on its rationalization.In the second aspect,the unfair format clause in the civil and commercial contracts is differentiated.In principle,the unfair format clause in the consumer contract is an invalid clause;the unfair format clause in the commercial contract is a revocable clause.However,in special circumstances,such as monopoly and other contractual parties between the contractual status of the structural imbalance,the effectiveness of the unfair format clause is determined by the weak relative.The fifth part: put forward corresponding suggestions for the improvement of the judicial inadequacy of the invalid rules of the unfair format clause.In judicial practice,the judicial trial concept of the invalid rules of the unfair format clause should be moderately corrected:First,The effectiveness of the determination takes a variety of factors,the nature of the contract,the purpose of contracting,the principle of equality and mutual benefit,consideration,common sense,social effects,etc.,combined with the specific case,comprehensive analysis,cautiously determined;secondly,in the process of comprehensively judging multiple factors,it should be strengthened The concept of commercial trials strictly follows the formal logic,cautiously intervenes in enterprise autonomy,attaches importance to program control and consideration mechanism,and then protects the legal profit of enterprises.At the same time,it also needs to be vigilant to overprotect the interests of commercial entities,abuse the theory of self-sweetness,and ignore the protection and relief of relative disadvantages rights.