The Subscription Regulation Of Standard Terms

According to the newly released draft civil code,the scope of obligations and legal consequences have been substantially revised,except for the fulfillment of the prescribed regulatory obligations.However,the regulation of the draft are still contrary to the views of most scholars in Chinese..This paper intends to analyze the theoretical basis for the classification of standard clauses and the role of prescribed regulation.And on the basis of the provisions of the draft to provide Suggestions for improvement.Chapter one studies the nature of standard terms and analyzes the source of binding force of standard terms.The purpose is to explore the theoretical basis of the regulation of the prescribed obligations.In the face of the market demand for transaction efficiency,it often happens that the counterpart does not know,can not know the content of the terms.The academic has been discussing whether the expression of will is the important element for the format clause to produce the validity.There are three main theories,"contract theory","regulation theory" and "neutrality theory".This paper agrees with the first one.In the face of the interpretation dilemma,the author believes that we can start with a loose interpretation of meaning expression.This can realize the standard clause distinction regulation.The second chapter studies the role of prescribed regulations,with the purpose of distinguishing clearly that stipulated regulations play a role of content control and can independently maintain the justice of contracts.From the perspective of thecharacteristics of standard terms and consumer protection,it is analyzed that the protection of transaction weakness is the fundamental purpose of private law regulation.In the traditional concept,the regulation is a procedural rule,which only determines whether the standard terms can become a part of the contract.However,in the case of differentiated regulation,the role of regulation is changed,which is no longer a purely procedural rule,but a function of maintaining the justice of contract,that is,content control.Under the effect of content control,the regulation has stronger pertinence,which can increase the identification of terms,simplify transaction procedures and promote transaction convenience.Compared with comprehensive regulation,differentiated regulation has significant advantages.The third chapter is the study and improvement of the specific rules.This chapter is divided into three parts as follows: the first part is the improvement of the prescribed way of performing obligations.Text processing is no longer applicable to all forms of transactions,in different industries there is a phenomenon of uneven prompt effect.This paper proposes to set up the "other ways" as a basic rule and expand the discretion of judges.At the same time,add the professional content of the contract,terminology complex industry of the initiative to explain the obligation.The second part is about the scope of obligations.Against the viewpoint of the academic community that all standard terms should be included in the scope of regulation,it is believed that under the control of content,it is not necessary to include all standard terms in the scope of regulation.The "provisions with significant relationship with the other party" added in the draft civil code is a subjective defining standard.This paper proposes to adopt the legislative method of combining general rules and contingency rules,take them as the basic rules,and add other specific types.The third part is about the choice of legal consequences.Under the effect of content control,the adjustment objects of stipulated regulation and effectiveness regulation are different,the legal consequences of adopting validity will not cause legal conflicts,and the four typical legal consequences can be applied to make the other party free from the restriction of unfair terms.In terms of binding force,the four kinds of consequences can be dividedinto pre-judgment and post-judgment.The "right of claim" established in the draft civil code also belongs to the mode of ex post judgment.However,whether the exercise of "right of claim" needs to go through the judicial process remains to be made clear by legislation.From the perspective of maintaining the stability of the legal system,it is more reasonable to interpret the application mode as "relatively invalid".