| Prepaid consumption has the characteristics of credit,financing and one-way risk,which makes the standard terms in prepaid consumption contract more specific than the general standard terms and intensifies the risks borne by consumers.Operators often use their dominant position to force consumers to accept unfair standard terms,which seriously damages the interests of consumers and damages the substantive justice of contracts.By analyzing the typical examples of the disputes about prepaid consumption standard terms in judicial practice,it can be found that the standard terms in prepaid consumption may cause the following legal problems:first,some standard terms have disputes on the determination of validity,which may easily lead to "different judgments for the same case";Second,the specific rules for the determination of the validity of prepaid consumption standard terms are scattered in departmental rules and local regulations.Since most of the provisions on the effectiveness of standard clauses in China’s current laws are general provisions,judges are often unable to make judgments only based on existing legal rules in the judicial determination process.In order to understand the fair and reasonable standard of prepaid consumption standard,the judge must fill the gap through value judgment,which may consider various factors including laws and regulations,social facts,case conditions and so on.Even if the same factors are considered,different judgments may be formed based on personal value understanding or even different world views.Therefore,the result of the judgment may vary from person to person,causing disputes between practice and theory.With the lag of legislation,the efforts of civil law to remedy legal formalism are very limited.In order to protect the rights and interests of consumers and maintain contract justice,the substantial fairness concept of economic law can be introduced into the trial process to guide the discretion of judges and clarify the constraints on the measurement of judges’ interests.Focusing on the nature,type and purpose of the prepaid consumption contract to confirm the rights and responsibilities between the parties,and draw a different conclusion from the traditional civil and commercial law thinking and trial standards.At the same time,give full play to the guiding role of typical cases,maximize the realization of the same case with the same sentence,so as to maintain the unity of law.With the judicial control to drive legislation,to gradually improve the effectiveness of prepaid consumption standard clause recognition system. |
