On"Considered To Be Agreed"Conducts In The Modification Of Standard Terms

The change of standard terms often occurs in banking,telecommunications,Internet and other industries.Most of them change unilaterally in accordance with the standard clause in the contract-"unilateral change right clause",which has the possibility of potential damage to the rights and interests of the counterpart of the standard clause,which should be regulated.In our country,only in the field of e-commerce,it is regulated by directly giving the operator of e-commerce platform the right of unilateral change.Article 548(4),added to the Japanese Civil Code in 2017,adopts the regulation method of "regarded as agreeable" to the changed clause,which formulates the unilateral change of the preparation of the standard clause as the consensual change,and adds substantive regulatory elements and formal regulatory elements,thus forming the theory of "regarded as agreeable" in the change of standard terms.Our country can draw lessons from this theory,legislate and regulate the change of the standard clause in the civil code,add and further improve the substantive regulation elements and formal regulation elements.In addition to the introduction and conclusion,the full text is divided into four chapters.The first chapter of the text discusses the emergence of the theory of "regarded as agreeable" in the change of Japanese standard terms.This theory means that the standard clause preparator makes unilateral changes to the standard terms that are being performed,which is regarded as desirable and the change is effective if it meets the regulatory requirements.It belongs to the change rules in the standard clause regulation system of the Japanese Civil Code,which is juxtaposed with the established rules.It breaks through the traditional method of regulating the change of standard terms--content control rules.Its formation is affected by Japan's economic development,and there are still disputes in the legislative process.The second chapter analyzes the legal basis of the theory of "regarded as agreeable" in the change of Japanese standard terms.This theory embodies the principle of agreement of contract,solves the problem of the source of binding force after the change of standard terms,reflects the application of legal fiction theory,and has the functions of saving legislative resources and reflecting unique legal thinking.It has achieved the unity and mutual connection of the regulation system of standard terms in the Japanese Civil Code,and unified the rules of entry and change.The third chapter analyzes the constituent elements of the theory of "regarded as agreeable" in the change of Japanese standard terms.The object of the analysis is Article 548 of the Japanese Civil Code,which includes three parts: the consensual subject,the regulatory elements,and the relationship with the content control rules.The counterpart in the agreeable subject does not require that most of them are not specific.Regulatory elements are divided into substantive regulatory elements and formal regulatory elements.According to the overall interests of the counterpart,the essential elements of regulation can be divided into interest change and non-interest change.The latter should be judged by the conformity of the purpose of the contract and the rationality of the content of the change.The purpose of the contract is the common and objective purpose of both parties.The judgment of the rationality of the content of the change includes: the judgment of the necessity of the change in the way of "regarded as desirable";the judgment of the appropriateness of the content after the change required by the "identity" of the contract change;the existence of the change clause and its content judgment and so on.The formal regulation element is the "known" system,which is divided into announcement and individual notice according to the degree of change.The content of "known" should include: the meaning of change;the content after change;the period during which the effect occurs.In addition,the application of content control rules is excluded when the format terms are changed.The fourth chapter discusses the enlightenment of the Japanese standard clause change theory to China.With regard to drawing lessons from this theory,the realistic level of our country has the realistic demand of regulating the industry practice of harming the interests of the opposite party,as well as the practical foundation laid by the industry experience.At the legal level,there are legislative gaps,lack of legislative effectiveness and other legal needs,as well as the legislative foundation laid by Article 34 of the Electronic Commerce Law.Therefore,China should establish a regulation system for the change of standard terms.The part that needs to be added: stipulate the content of the change of the standard clause in the civil code;give it a more clear substantive regulatory elements.What needs to be improved: the relative party refuses to accept the exit mechanism of the change,and the formal regulatory elements to ensure the "well-known" effect.