Study On The Content Control Of Standard Terms

This thesis studies the basic legal issues of content control of standard terms and attempts to clarify the criteria and basic rules for examining the validity of standard terms based on the existing relevant rules and the practical situation.First of all,from the aspects of legislation and legal practice,clarify the conflicts among legal provisions of standard terms,and identify the problems arising out of legal application,for example,the unclear distinction between incorporation control and content control rules,and the abstract evaluation criteria of Article 40 without providing the evaluation standards for effectiveness review.Furthermore,it is necessary to clarify the relationship between Article 40 and the surrounding rules.It is clear that Article 39 should be the rule of incorporation control,its scope of application is different from Article 40,commercial contracts should be excluded,and clauses related to consumers' own major rights and interests should be noted and explained.Article 53 does not specifically address the validity rules of the formal clauses,and the "exemption clause" should be strictly interpreted.The two actually jointly regulate the content of the exemption clause with different standards.Secondly,the pre-problems of the content control shall be explained,including the legitimacy basis and the applicable scope of the content control derived therefrom.The legitimacy theory of regulating standard terms shall be the principles of contract freedom and contract justice,and the underlying reason behind lies in “ensuring effective market competition”.On this basis,the applicable premise of content control,that is,its scope of application,was clarified.Terms with a relatively high degree ofconsent,i.e.major subject matters and clauses negotiated individually,shall not be subject to content control;terms only repeating legal rules and terms subject to tradition content control shall also be excluded.For identifying major subject matters,famous contracts can refer to the essentialia negotii of the contract,and for innominate contract,the degree of attention to terms should be considered from a normal perspective.Finally,study on content control of standard terms,which is the most important part of this thesis.The three statutory situations in the latter part of Article 40 of the Contract Law,actually defined as the object of content control,does not provide the legal criterion for evaluating the validity of standard terms.The PRC Civil Code has given certain response to the aforementioned issues,but it still has not broken through its general regulatory system.Therefore,in combination with the comparative law,the validity of the standard contract is subject to the principles of fairness and good faith.Specifically,the criteria are whether the standard terms have “unreasonably disinterested” the counterparty as a result of “deviating and supplementing arbitrary norms” or ruin the contract's purpose due to restricting important rights and obligations,which disobey the fairness principle.In addition,it has been recognized that the legal system for evaluating the validity of standard terms is open,and all relevant factors shall be considered comprehensively.It is worth noting that standard terms are usually repeatedly applied to a certain type of transaction,which is not limited to achieving the justice of a specific case,so further clarifying the specific criteria of content control relies on the accumulation of experience of the existing judgments by court.Disputed standard terms that are deemed invalid due to content control do not affect the effectiveness of other clauses in the format contract.When filling loopholes,the general method of filling loopholes in the framework of the Contract Law is unable to apply,priority can be given to “arbitrary norms”.