The Research Of Arbitrary Norms Of Contract Law

Legal norms are the basic elements and final results of legislation activities. Currently there is no consensus on the nature, classification and identification of legal norms among scholars. This article introduces arbitrary norms of contract law along the path of legal norms, civil legal norms, arbitrary norms. No matter in theoretical circle or juridical practice, there is no uniform standard of distinguishing arbitrary norms from other kinds of civil legal norms like mandatory norms, which especially brings about many issues difficult to solve to legal practices. Meanwhile, it is difficult for contracting parties to apply to the right norms, which makes no contribution to the parties or regulate rights and liabilities impartially between them. Therefore, the introduction of the concept, nature and functions of arbitrary norms, the partition of the standards of arbitrary norms and the proposals of our legislation of civil norms in the future are particularly important. This article discusses the arbitrary norms of contract law from the following aspects:Part I: Basic issues of arbitrary norms.(a) The concept of arbitrary norms in Chinese legal system and foreign legal systems. There is mainly one classification method called dichotomy between mandatory norms and arbitrary norms. Arbitrary norms can be excluded from application or changed according to the parties’ intention as the opposite of mandatory norms.(b) The classification of arbitrary norms. It includes supplementary arbitrary norms and explanatory arbitrary norms. They have different functions respectively as well as similarities.(c) Civil legal norms related to arbitrary norms. According to current theories, there are mainly advocating norms, mixed norms, norms of authorizing a third party, norms of authorizing one party and mandatory norms whose differences and similarities are the important elements of identification.(d) The nature of arbitrary norms including certainty, coerciveness and limitation.(e) The functions of arbitrary norms. Arbitrary norms are the main tool of filling in gaps in contracts, which facilitate the proceeding of civil activities in order to promote exchanges and trades, save transaction costs, reduce risks and keep the principles of fairness and good faith. From the judicial point of view, arbitrary norms can limit judge’s power of discretion and refrain from judge-made laws so as to maintain social fairness.PartⅡ: The inspection of the application of arbitrary norms. It is monotonous to distinguish arbitrary norms from other civil legal norms merely in theory. Reversely it is more meaningful to analyze the application and classification of arbitrary norms in practices.(a) The methods of identification. There are mainly two methods namely formal method and essential method. The later includes methods of interest conflict, purpose of legal norms and social effects, etc. Except for what we have discussed above, there must be more essential methods in the wide civil legal activities, which are important subjects need a deeper research in the future. After putting up with the methods of identification of arbitrary norms, special representative issues on this matter are also needed to be discussed, which includes the nature of the right of optional cancellation of commission contracts, the validity of contracts that are exclusive of the responsibility of warranty of defect and the opinions on the coercion of contract forms.(b) The application of arbitrary norms. This article puts forward the application conditions and different kinds of hindrances for the civil bodies in the process of applying arbitrary norms as well as the order of the application between supplementary explanation and arbitrary norms.Part III: The legislative design of arbitrary norms. Based on the aforementioned discussions, this article comes up with the principles and objectives of legislative design.(a) The defects of arbitrary norms in contract law.(b) The legislative design of arbitrary norms. As for the total principle of identification to the great extent, legislators should explicit the distinct traits of arbitrary norms, try their best to conform to parties’ intentions and meet the value of the Economics of Law as well as pay attention to the concepts of efficiency,fairness and good faith.