The Content Regulation Of Standard Terms

This thesis mainly researches on the legal application of the content regulation of the standard terms,and tries to analyze the whole process of it.First of all,starting from the identification of standard terms and the legitimacy of legal regulation,we think the three characteristics described in Article 39 of the Contract Law are not exact.“Reuse” only indicates the economic purpose of standard terms and should not be the identified feature.The core characteristic of standard terms is “take it or leave it” which means the used party making the terms before their consultation and the received party can't change any details.This is also the fundamental reason for the substantial justice to be easily damaged by the formal freedom,which is the legal basis for the special legislation and interpretation of the content regulation of the standard terms.Secondly,analyze the relevant legal provisions,and distinguish entering regulation and content regulation.There is a certain contradiction between the Article39,Article 40 of the Contract Law and its related judicial interpretation.The right interpretation is that the Article 39 is the regulation of entering control.Judging from the result of the case retrieval,our courts still use the article mentioned ahead as the rule of validity review.Thirdly,discussing the applicable method of the Article 40 of Contract Law: the first step is to clarify the scope of application of the clause,and there is no special regulation to the main subject matters of one contract with higher degree of agreement.As the identification of the main subject matters,a named contract may refer to the definition of the law.And the unnamed contract,consider the degree of attention in the view of general people and market adjustment functions.We should reduce the scope of the main subject matters of one contract by the principle of "doubt not to be identified".When the main subject matters of one contract are unfair,the regulation mode is as same as the general contract terms which are negotiated individually.The application of the Article 54 of Contract Law satisfies both the subjective malice and the objective imbalance,the effect of which is that the contract can be revoked.The applicable scope of Article 40 are the clauses which deviate or supplement the arbitrary clause,to their cognizance only needs to satisfy the objective unbalance element,and its apparent loses the fair standard of determination is obviously lower than the main subject matters of one contract.The second step is to determine the quality of the Article 40.Combining the legislative mode of standard terms in Germany and Taiwan,it is hard to say that the legislative technique of standard terms in China is as same as the modes mentioned ahead.The Article 40 of Contract Law is not a legal example of invalid form clause,only the general feature of the standard terms or the object of content control,the article does not provide the substantive judgment standard.The principles of content regulation of standard terms are fairness doctrine and good faith doctrine.Fourthly,the case study is used to find a more operable measurement.It is impossible to simplify the method of content regulation to a syllogistic way.The standard terms are invalid when the deviation or supplement of arbitrary law norm is reached,and the dimension and degree of judgment should depend more on the type summary of the courts' judgments.From the results of the search,the main considerations include whether the economic purpose behind the clause is legitimate,the necessity of the purpose and the means of realization,whether it violates the legislative purpose of deviating from the norm,whether it leads to the failure of the receiving party to contract,and whether the recipient has sufficient degree of exceptional meaning.Finally,a diagram was made to show the logic process of content regulation of standard terms,and analyzed4 kinds of typical standard terms in different practical areas as examples.