A Study On The Rules For Determining The Effect Of Standard Terms

Since the promulgation of the contract law,there has been a lot of controversy in the academic circles about the provisions related to the standard terms,such as the qualitative issues in Article 39 of the contract law,as well as the contradictions between Article 39 and Article 40 of the contract law.However,the subsequent judicial interpretation did not end the debate,but led to the further aggravation of the controversial issues.The dispute in academic circles also involves the practical circles.The existence of the dispute makes the judicial practice different ways to solve the dispute of the validity of the standard terms,and does not form a unified identification rule.The purpose of this paper is to combine the problems in judicial practice,reinterpret the academic disputes,and take into account the provisions of the civil code(Draft),learn from the mature provisions of foreign laws,and build a complete system of effectiveness recognition rules.Specifically,this paper is divided into five parts:The first part is mainly to demonstrate the concept,characteristics and other basic contents of the standard terms,and to sort out the legal provisions related to the confirmation of the validity of the standard terms,so as to clarify the obligations of the users of the standard terms,the invalid provisions of the standard terms and the revocable provisions of the standard terms and other contents related to the confirmation of the validity.The second part combines the cases in judicial practice to find out the problems in judicial practice,and analyzes the causes.It finds out that there are some problems in judicial practice:"1.The lack of premise rules in the determination of the validity of standard terms;2.The difference in the rules of the determination of the validity of invalid standard terms;3.The confusion in the analysis structure of the determination of the validity of standard terms." The reasons include two aspects:"1.The legal analysis of the rules for determining the validity of standard terms is insufficient;2.The rules for determining the validity of standard terms are incomplete."The third part is mainly about the analysis of relevant legal provisions.This paper focuses on the analysis of the nature of Article 39 of the contract law,and puts forward the author's support for the theory of "entering into the contract rules";it shows that the "principle of fairness" should not be directly used as the basis for determining the validity;it answers the contradiction between article 39 and Article 40 of the contract law by analyzing the relationship between the"exemption clause" and the "form exemption clause";it introduces the method of overall interpretation From the perspective of contract law,Article 39 should be the conclusion of "the theory of revocable effect".It analyzes the contents and changes of the civil code(Draft)with the method of overall interpretation.In the fourth part,the author analyzes the legal provisions of the rules for the determination of the effect of standard clauses in British law,the law of the International Association for the unification of private law and German law,and finds that the rules for the determination of the effect established in the form of"prescriptive regulation" and "content regulation" in German law are more comprehensive and mature,and points out what is worth learning from in China.The fifth part is the discussion of "the system of the rules for the confirmation of the validity of the standard terms",which mainly includes three parts:the premise of the rules for the confirmation of the validity,the main content of the rules for the confirmation of the validity and the logical structure of the rules for the confirmation of the validity,among which the premise includes"the confirmation of the rules for the standard terms" and "the confirmation of the rules for the contract";the main content includes "the effective" Recognition rules,invalid recognition rules and revocable recognition rules;and the logical structure is to integrate the premise content and main content,forming the logical sequence of rule application.In order to achieve a complete structure,logical and reasonable effectiveness of the rule system.