Issue On Several Disputes In Standard Term

The freedom of contract empowers the parties to decide the contents of the contract and demonstrating the fairness spirit of the contract.The standard term system seems to focus more on efficiency,and specific legal provisions become a tool of balance.Therefore,the rules that enter into contract and content control rules of the standard terms are stricter than the individual negotiation terms.The first step to apply rules to settle disputes is to understand the function and content of the rule itself.Vague rules lead to the conflict of understanding and application of rules,which could become a difficult problem to solve in practice.The obligation of attention and explanation which included in the entry into contract rules should not be compared with the content control rules.s the core standard of content control--payment imbalance clause--there is scope for further type interpretation.The principle of fairness should also be a rule of principle.The first chapter of this paper extracts the general characteristics of standard clauses by comparing the definition of standard clauses in the legislative cases of different countries.That is,pre-formulation,repeated use and failure to consult with the other party.Then the characteristics of the provisions of our legislation are analyzed one by one;the essential characteristics of the standard terms,that is,cannot negotiate with each other.t the same time,the other two features can be used as formal features to infer a clause is a standard term.The second chapter of this article mainly focuses on article 40 of the contract law,which is the content control of standard clauses.In particular,it explains whether there is a situation of "one party exempts its liability,increases the liability of theother party and excludes the main rights of the other party" in the standard clause,and explores whether such effectiveness evaluation standard is reasonable.Besides,it is necessary to put forward the principles of "fairness" and "good faith" as the standards of principle.fter having a basic understanding of the content control norms of standard clauses in the contract law,the problem to be solved in the third chapter is the conflict between norms.Firstly,the problem relates to the conflict of application between article 39 and article 40,that is,how to apply the two clauses of exemption from liability of a party.Secondly,the interpretation of this part in the judicial interpretation [2009](article 9 and article 10)conflicts with the provisions of the contract law,including whether the establishment of the counterpart's cancellation right conforms to the jurisprudence or not can be used as a supplementary explanation for the lack of legal effect in article 39.The evaluation of the validity of a standard provision is either directly applicable to article 40,or applicable to article 10 of the judicial interpretation of law [2009] and satisfying the requirement of a violation of article 39(1).The reason for these conflicts is that: firstly,the imperfection in the effect of article 39 law leads to the situation that contract clauses are often judged to be invalid according to this clause in practice,which is a loophole in the legislation.It is suggested to add "no effect" to it;secondly,regarding the issue of the scope of application of article 39,as long as the standard terms are applicable to the applicable space of this article,it cannot be understood merely as only applicable to the terms of exemption or limitation of liability.In the author's opinion,with regard to the application of articles 39 and 40,the first thing that should be examined is whether the provider of standard terms has fulfilled the obligation of drawing attention and explaining.If not,it shall be determined in accordance with article 39 that the standard terms have not been included in the contract and are not the content of the contract,that is,"no effect".If obligations were fulfilled,they would be included in the scope of application of article 40.Because of the different regulation path between the contract rules and the content control rules,we should not mix them up.Therefore,article 10 of the interpretation [2009] is obviously not advisable to integrate theviolation of the attention to solicitation and the obligation of explanation with the imbalance of payment,and article 40 should be directly applied.In the last conclusion,the questions and conclusions in each chapter are emphasised again,and a summary is made of the whole article.Straighten out the path of dispute resolution,the contradiction between the norms will vanish.