The Research On The Regulation Of Standard Clauses In Consumer Contracts

Based on the analysis and summary of the judicial cases related to standard terms in consumer contracts, the thesis discovers that different courts do not hold the same opinions towards the standard terms with the similar nature. One of the important reason is the freedom of contract in civil law which most judges choose to adopt in their judgments, while may ignore the intention of protecting consumers in Law of the People's Republic of China on Protection of Consumer Rights and Interests. Therefore this thesis focuses on the special character of the regulation of standard terms in consumer contracts, analyzes the judicial cases about the effectiveness of the standard terms related to seven categories of consumer contracts and the announcements made by Chinese Consumer Association on the unfair and unreasonable standard terms, with China's current laws and regulations in force, respectively, combined the judicial interpretations and legislations for fulfilling purposes of addressing related proposals.In the first part, this thesis describes the standard terms based on the law's basic situation. Firstly, the thesis reviews the regulations of existing laws in terms of the standard terms, and analyzes the academic research of the standard terms since Chinese Reform and Opening Up period comprehensively. Secondly, according to the fair and reasonable principle, the standard terms are divided into fair and reasonable standard terms and contrary to the fair and reasonable principle of the standard terms-"Take-it-or-leave-it clauses." Finally, the thesis analyzes the consumption of the special nature of the standard terms in consumer contracts Respectively, it analyze the similarities and differences of the standard terms between consumer contracts and ordinary civil contracts, the intention of tilted protection of the rights and interests of consumers and the limitations of the operators'expansions.In the second part, this thesis focuses on analyzing the standard terms in of consumer contracts in terms of the status quo. In reference to the Chinese Consumer Associations'announcements of the "Take-it-or-leave-it clauses" and related judicial decisions, this thesis examines the contemporary situations of standard terms based on the sale of real estate contracts and real estate agents, hotel service contracts, insurance contracts, telecommunications service contracts, service contract photography, cinema service contracts, catering contracts, express contracts of carriage, the transportation contracts of passengers and summarizes the standard terms which includes "the ultimate power to interpret the clauses".The third part is about the comparative law in standard terms of consumer contracts. Firstly, the thesis describes the German law on standard terms in consumer contracts, reviews the general steps which judges apply in the cases related to standard terms, the approaches to explain the standard terms, and the examination of content review about the standard terms. Secondly, the related system in Taiwan, China is discussed in the format on the standard terms in consumer contracts by the terms of the contents of standard terms, the methods that the standard terms are set into the consumer contracts, and the principles of interpretation of standard terms. Thirdly, the thesis introduces the standard terms in English law as well, and covers both the regulations of standard terms and the rules on how to set the standard terms into the consumer contracts. Finally, the thesis concludes the revelation from the above countries towards Chinese legal system.In this thesis, the fourth part mainly comments on the regulation on standard terms in consumer contract law. At the beginning, the thesis introduces the regulation on standard terms from the perspective of Consumer Protection Law and Contract Law. Then, the thesis reviews the local regulations and regulatory documents from thirty-two provinces of China and the State Administration for Industry and Commerce of the People's Republic of China.In the final part, this thesis tries to figure out the feasible advice on improving the regulation of the standard terms in consumer contracts both from the interpretative and legislative aspects. In the interpretative aspect, this thesis suggests considering whether the standard terms transcends the limits the consumer's rights, whether the standard terms conform to the principles of the legislative purposes. The next part focuses on suggestions for the modification of the "Consumer Protection Law". The following aspects could be paid attention to: the methods to determine whether the standard term is fair and reasonable; identify the administrative department which is charged to manage and supervise the fairness of standard terms; review the standard terms established through the registration and the public announcement; and design the guidelines of the allowed-recorded items and non-allowed items in standard terms.