Research On The Legislation Mode Of Service Contract

The typical contract system in China comprises the specific provisions of Contract Law and other typical contracts stipulated in other special laws.And the latter make up for the deficiency of the typical contract provisions in Contract Law,regulating and protecting transaction effectively.With the improvement of humanistic care in legislation,the enhancement of consumer protection awareness,the emergence of novel typical contracts and the global development of typical contracts in other countries,those trends set the stage for service contract becoming one new kind of typical contract.Unlike current Contract Law focusing on cargo trade,this article pays more attentions on labor service,the object of service contract.The value of service is attached to service itself,which depends on a series property of service,such as,intangibility,non-storage,nonreciprocity,irreplaceability and persistence,etc.And the service recipients themselves influence the service effects,and the service provider and the service recipient are unequal in reality.With the analysis on the difference and relation among service contract,labor contract,employment contract and work contract,it is shown that the future civil code shall admit labor contract relationship,service contract relationship(including labor-oriented work contract,labor-oriented employment contract),so as to clear the position of service contract in the contract law system.Through the study of comparative law,this article analyzes the legislation practice of service contract in Germany,Holland,Japan,Russia and European Union,and reviews the initial exploration on service contract during the legislation process of our Contract Law.This article also analyzes the structure of service contract legislation model,and points out that the legislation tradition of Contract Law with general-specific mode shall be followed or imitated.Service contract legislation shall adopt general-specific mode,i.e.with the structure of Contract Law general provisions-service contract general provisions-service contract specific provisions,imitating the classical model of work contract focusing on labor provisions,so as to set up the system of service contract.The general provisions of service contract law shall include the personal fulfillment principle,the notification obligation,the mutual assistance obligation,the arbitrary cancellation right,and the judgment perspective and legal consequences of the service performance defect.So it provides a helpful reference for the Civil Code legislation,taking the service contract as one of its typical contracts.