Standard Clauses Research

With economic development, standard clauses are widely applied in daily life. With improving the transaction efficiency, they also cause a lot of dispute in practice .The reason is mainly that the standard clauses providers in economically dominant position often put some unfair terms into the contract ,which often protect themselves against the responsibility and limit the right of the other party. The validity of these standard clauses depends on whether they can be legally set into the contract and have the desired effect Our country's existing legal provisions on this is too rough, and there are many anomalies and contradictions, which cause some difficulties to the judicial practice .In this article, The research on standard clauses is based on a case (whether the standard clauses on the back of movie tickets are to take effect) in our real life to put forward some suggestions on the lack of law about standard clauses.This article is divided into three chapters.The first chapter is about the conditions of standard clauses being set into the contract. As the standard clauses are drafted by the provider alone and can not fully reflect the meaning of the other side of the contract, Therefore, their entry in the contract should be subject to special regulation. So the first step is to define the nature of the clauses"Do not bring food and beverage from the external stores into theater"on the back of movie tickets. By analysis of the definition and type of standard clauses, the clauses on the back of movie tickets is one restricting the rights of the other side. so its being set into the contract should be regulated by the item 39 in Contract Law, which provides standard clauses to be set into contract, the providers should determine rights and obligations between the two sides under the principle of equity, they also should draw the other side's attention to the exemption clauses in a reasonable way. The provisions of our laws here are too general and a little inadequate. First of all, there is no specific requirements about "reasonable way", secondly, the scope that standard terms providers draw the other side to attention to is too narrow, It should include not only the exemption clause but also the terms limiting the other's rights and ambiguous terms. Last, it develops the principle of fairness to measure the conduct of the parties when standard clauses is being set into contract, which goes against contract theory. Therefore, despite the clauses on the back of movie tickets violates the principle of fairness, it should not be a negative reason of being set into contract. It is because the theater didn't remind consumers in a reasonable way that prevented the clauses being a part of the contract.The second chapter is to identify the validity of standard clauses. Whether the standard terms entry into contract takes effect also depends on the court's judgment according to a certain criteria. According to Chinese law, the validity of standard clauses is mainly divided into two kinds: valid and invalid terms, and mainly about the invalid provision. The major causes of invalidity include: violation of the law of peremptory norms; standard clauses provider remove the responsibility; violation of the principle of fairness and rightfulness. So even if the terms on the back of movie tickets is set into the contract, It can't be recognized as invalid for violating the principle of fairness and rightfulness. However, But our country's legal provisions here are too rough. For example, don't distinguish between managed mandatory norms and effective peremptory norms, don't distinguish between invalid disclaimer and rational and effective allocation of business risks disclaimer, but all were declared invalid. It is not conducive to the development of market economy and can not adequately protect the interests of consumers. This section also discusses the role that the interpretation plays in recognizing the validity of the standard clauses. Firstly, it is the premise of confirming standard clauses's validity. Secondly, principles of interpretation about standard clauses, such as, uniform interpretation, making unfavorable interpretation to the provider, individual agreement priority to standard clauses. These principles can play a role in regulating unfair standard clauses and protect the interests of consumers more effectively.The third chapter is about some suggestions how to improve legal regulation of standard clauses. Firstly, put forward some legislative proposals, such as, improve the legislative technique and change current Legislation in department Law. As to the improvment on the contents of the legislation, it is mainly about how to improve standard clauses being set into contract, the interpretation and validity of standard clauses. In addition to the previous research, author gives further recommendations. For example, In terms of standard clauses being set into contract, we should delete the provisions of the principle of equity from article 39 in "Contract Law", increase provisions that the other side agrees to the standard terms entry into contract and some provisions on exception clause. Besides this, we should increase the legal consequence of standard terms provider not fulfilling his obligations. We should indicate the article 39 only applies to consumer contracts too. As to the interpretation of standard clauses, we should clear the order of the principles of uniform interpretation and making unfavorable interpretation to the provider. When employing the principle of individual agreement priority to standard clauses, we should add a prerequisite that individual agreement is more helpful to consumers. As to the validity of standard clauses, we should remove Contract Law article 40, paragraph 1, because there has been invalid provisions and it certainly applies to the standard clauses, so this invoke norms here is duplicate. Learn from foreign legislative cases, and we should increase specific provisions of relatively ineffective clauses and give the other side the right to change the standard terms. In the "Consumer Protection Law", consumer organizations should have specific rights that they can directly ask court to declare those unfair clauses are void, which are very common in the consumer industry .In addition, we should improve the quality of judges and strengthen judicial independence to improve judicial review of standard terms. The implementation of administrative supervision is also necessary. Because of the imperfection of our legislation and unavailable government regulation, community supervision is more important for avoiding the use of unfair standard terms and protecting the interests of consumers.