Judgment Criteria For Unfair Standard Terms

the Civil Code of the People’s Republic of China（hereinafter referred to as the "Civil Code"）shall come into force on January 1,2021.Article 497 of Civil Code amends the standard terms.The addition of "unreasonable" as a constitutive element not only changes the "one size fits all" situation where the old Contract Law exempts or restricts the unfair standard terms of the counterparty,but also breaks the main restriction between operators and consumers in the old Consumer Rights Protection Law.Because of the generality of the regulations,the distinction between "exclusion" and "restriction" of the main rights of relatives is unclear.The standards for determining what is "unreasonable" and what is a "primary right" are still unclear.Therefore,there is room for interpretation in application-there are problems with ambiguous judgment standard,and cases in practice are not sorted out based on the possibility of evaluation to construct categorized judgment criteria.This article mainly consists of four parts and makes some further discussions focusing on these issues.This article focuses on such issues and is mainly consists of four parts.The first part is to sort out the current status of the law application of unfair standard terms in our country to find questions.Based on the current status of our country’s existing legislation,taking classic cases as the entry point to bring up the problem of unclear criteria for judging unfair format clauses.and to analyze the reasons for the problem.First,the abstract judgment standard is not clear.So,it is necessary to define the abstract judgment standard of unfair standard terms,analyzing the connotation of the principle of fairness and the principle of good faith,telling the relationship between these two principle and their connection.Secondly,it has not established the criteria for judging specific types of unfair format terms.Therefore,it is necessary to explain the constitutive element "unreasonable",which means to subdivide whether there is possibility of evaluation,to judge whether it violates the principle of equality and mutual benefit,to judge whether it is inconsistent with the autonomy of will or excludes the main rights so that the purpose of the contract can not be achieved.The second part is to explore unfair standard terms with have the possibility of evaluation.The key is to judge whether there are "unreasonable disinterests" caused by the standard terms between the parties.It is necessary to explain the "unreasonable" elements of Article 497 Item 2 of the Civil Code and to type practical cases.First of all,the subjective aspects of the standard terms which exempted or mitigate one party’s responsibilities should be distinguished.It is usually interpreted as fairness under light negligence.However,if it violates abstract judgment standards,such as the principle of good faith or fairness,it can also be judged as unfair.The second is about the standard terms that increase the responsibility of the counterparty,which is specifically sorted out as unreasonable promises,too long or unclear payment period,extra responsibilities after the breach of contract being aggravated,improper reason,relieved payment responsibilities of the users of the standard terms without proper reason.Thirdly,sorting out unreasonable restrictions on the rights of the counterparty mainly include unreasonable restrictions on damages,leaving no room for negotiation and changes,improper settlement of contracts and improper fictional intention expressions.The third part is about the unfair standard terms without the possibility of evaluation,which is expanded from the third item of Article 497.Discussing whether the exclusion of the main rights will cause unreasonable disinterests to the counterparty and lead to the failure of the purpose of the contract,which lead to a judgment that it is unfair and absolutely invalid.Combining our country’s judicial practice,referring to the existing list of unfair format terms in the doctrine and comparative law.By explaining what constitutes a “primary right”,define the scope of the unfair standard terms,conducting localized legal interpretation and theoretical analysis and sorting out specific typification.First of all,the contents of the unfair standard clause include the exclusion of compensation for personal damage caused by deliberate and gross negligence.Secondly,the rights of the counterparty’s autonomous to choice should be interpreted as belonging to the scope of the counterpart’s main rights,which means that it is unfair to exclude the right to terminate the contract.What is more,the rights to refuse payment and to set a mandatory minimum consumption recharge amount are also belongs to excluding the right to terminate the contract.Also,the aggravation of the agent’s responsibility can be explained into it.In addition,the exclusion of litigation rights,exemption from the user of the standard terms and the agreed unlawful time limit are the same.Other situations that exclude the main rights of the counterparty are improper infringements of the main rights of the counterparty should also should be interpreted as unfair.The fourth part is to discuss the issues related to the judging criteria of unfair standard terms.On one hand,this study focuses on the particularity of criteria for determining the fairness of standard terms in continuing contracts,which begins with the aim of permissibility of short-term price hikes,particularity during the duration of continuing contracts and exceptions for rescission.On the other hand,discussing the legal effects of standard terms which be judged as unfair.In principle,the contract is valid while the unfair standard clause is invalid.And only when the standard terms have entered into the contract without problem for interpretation,it is necessary to make a judgment on whether the standard terms are fair or not,deeming the unfair standard terms invalid while the contract cannot be rewritten.