The Judicial Regulation Of The Exemption Clause Of The Service Contract For The Aged In Institutions

The exemption clause of institutional pension service contract refers to the clause formulated unilaterally in advance by the pension institution according to the law or administrative permission before the conclusion of the pension contract,aiming to reduce or exempt the civil liability of the pension institution after the occurrence of the pension accident.There are five types of exemption clauses in institutional pension service contract:force majeure,accident,fault of pension counterpart,third party tort and limitation of litigation option.As an important part of the institutional pension service contract,the exemption clause not only has the advantages of promoting the transaction efficiency and reasonably distributing the responsibilities of the parties,but also has the natural disadvantages of the standard clause,that is,the violation of the principle of freedom and fairness of the contract.Therefore,we should take a correct attitude towards the exemption clauses of institutional pension service contract and regulate them within the existing legal framework.The exemption clause belongs to a type of standard clause.Since there is no special regulation on standard clause in China,the regulation of exemption clause mainly refers to the relevant provisions of contract law and its judicial interpretation,consumer rights and interests protection law,maritime law,insurance law and other laws.Generally speaking,China has not formed a perfect legal regulation system of exemption clauses,and the relevant legal provisions are generally general and broad,and lack of operability in practice.Although administrative regulation has the characteristics of initiative and flexibility,due to the impact of China's planned economy,most of the industry's contracts are mainly approved,filed or directly formulated by its superior competent department,which is often difficult to break away from the narrow interests of the Department to formulate fair format terms.Therefore,it is necessary to strengthen the judicial regulation of the exemption clause when there are defects in the legislative regulation and administrative regulation.At present,there are three ways to regulate the exemption clause of institutional pension service contract in our country,that is,the entry of review clause,the validity of judgment clause and the interpretation of controversial clause.In the judicial regulation of the exemption clause,the courts often have conflicts of different judgments in the same case.The author believes that the main reasons for the judicial conflict are as follows:first,the general and abstract legal provisions;second,the confusion of the application order of judicial regulations;third,it is difficult to prove the obligation of express explanation;fourth,the result of judicial discretion.In order to distribute the responsibilities of both parties of the pension contract fairly,it is very important to strengthen the judicial regulation of the exemption clauses of the institutional pension service contract.In order to improve the judicial regulation as the starting point,the Supreme People's court can speed up the issuance of relevant judicial interpretations and guide the publication of cases;clarify the regulation sequence of exemption clauses in judicial practice;further refine the evaluation criteria of prompt obligation;reasonably regulate the interpretation regulation of exemption clauses,and appropriately limit the discretion of judges.