Research On Several Questions Of Standard Contract Clauses

In economical big development of the western nation in the 18th~19th century, the freedom of contract had played the vital role. But it had never implemented actually in the market transaction. To 19th century's ends and at the beginning of the 20th century, the freedom of contract had been under the further impact. In order to reduce the transaction cost, some professions started to use the standard clauses. This new way of concluded a treaty obtained the promotion very quickly. After 20th century 50's, nearly all commercial domain had been used widely the standard clauses. Although the merchants used the standard clauses to work out the contract the original intention were in order to enhance the economic efficiency, but its appearance following had also brought in a series of legal difficult problem. In order to this new concludes a treaty the way to give in legal the rules and regulations, the various countries looked for the new legal science theory in abundance and established the new legal rule. After it had been near for a century the exploration, various Western economy developed country already established the more perfect legal framework. Our country also has initially constructed to adjust the standard clauses'legislation pattern through "Law of contract", "Consumer Rights and interests Protection method" and other correlation law laws and regulations has initially constructed the adjustment form provision legislation pattern. It is take the standard clauses'history as the breakthrough point by myself, I discussed this legal regime some elementary theories and the related rule.The first part, I elaborated the freedom of contract was variation process in succession to enter modern century and the standard clauses were used widely. First I discussed the historical perspective of the freedom of contract, the freedom of contract connotation and the freedom of contract history value appraisal in the 19th century. It was definite its contribution which made to the modern times market economy establishment and the development. The meaning of the freedom of contract includes generally concludes a treaty the freedom, the choice contract relative person's freedom, the determination contract content freedom, concludes a treaty the way free four aspects. Next I analyzed the decline reason of the freedom of contract in the 20th century: the standard clauses widespread using; the various countries generally carrying on the legislation intervention to the freedom of contract; The various countries assigning or setting up the administrative organ specially through the law, carrying on the surveillance, the management and the standard to the contract; labor contract socialization. It's the Self-criticism to the flaw of the freedom of contract. Finally I described the developing process of the standard clauses, obtained widely uses in the economic life appearance, and discussed its reason. Namely achieving certain scale finally by the monopoly existence and develops unceasingly; increasing ceaselessly about Transaction cost; requesting anxiously Public utilities development; standardization of product and service.The second part, I was in view of the form provision many names which exists in our country, according to the standard clauses'characteristic, analyzed the standard contract, standard form contract, model contract forms, contract d'adhesion, general transaction concept and so on with the standard clauses relation. I limited the standard clauses'meaning and characteristic, discussed the form provision legal nature from this.The third part, I discussed the standard clauses to obtain many profits in the modern society which the widespread application is brought. It may enhance the transaction efficiency, concludes a treaty economical time and expense. It may promote the transaction security, establish the commercial risk and the judicial risk in advance; it may supplement the legal rule the insufficiency, it may provide the possibility to carry on the new transaction for the litigant. Because of the standard clauses'application scope and the domain unceasing expansion, the influence which its flaw generation also revealed importantly: the big limit of the form contract relative person's freedom of contract; the own favoring about the standard clauses'maker in content; the contract risk rational distribution about the standard clauses'maker. In addition I carried on the summary to the concrete manifestation of the irrational distribution risk for the standard clauses in our country. Through the analysis about the advantages and disadvantages, it caused the dual character in relief for the standard clauses, this"the double-edged sword". We both must display its effect in the economic life, and must control the latent threat of its own existence.The fourth part, I discussed the Control of the content of the standard clauses. Because the standard clauses manifest the folk remedy will, often harm the contract relative person's lawful rights, even harm the social public interest. Therefore when the standard clauses occur slight defect, the laws must adopt the suitable method to control. Because the standard clauses work out the contract although conforms to the freedom of contract in appearance, but it has violated the contract just request actually in the essence. Therefore it is the important mission how carries on the control to the form provision content to become the modern law of contract. I mainly carried on the preliminary discussion from the control of the abolishable the standard clauses, the manners of content control of the standard clauses and the application of honest credit principle in the Control of the content of the standard clauses.The fifth part, I discussed the regulations of the standard clauses. I synthesize the rules and regulations way and the basic pattern to the standard clauses which the various countries use generally. I mainly analyzed them the good and bad points in the regulation of the standard clauses from the legislation, the judicature and the administration. The legislation is the most essential way of the various countries' rules and regulations about the standard clauses. The judicature is the direct method to intervene the most standard clauses'content. The administration is the earliest way in the application of the standard clauses'rules and regulations. And I carried on the brief summary and the appraisal in the regulation of legislation, the control of judicial and the regulation of administrative to our country.Finally, according to the experience and lesson of the various market economy developed country, and unifies with the legal pattern characteristic of our country present rules and regulations to control the standard clauses, I proposed three aspect principles which be supposed to follow at the pattern of the regulation of the standard clauses for the future.