Judicial Review On The Content Of Standard Terms

The provisions to review standard terms was initially stipulated in the Consumers Rights and Interests Protection Law.Article 24 of the law stipulates that businessmen can’t use standard terms to harm consumers interests,but these provisions have some drawbacks.The Contract Law has detailed provisions on standard terms,which not only stipulates judicial review on the content of standard terms,but also the standard terms concept theory and rules of interpretation.Its provisions are more specific than that on the Consumers Rights and Interests Protection Law.However,the Contract Law does not stipulate the general provisions of judicial review on the content of standard terms,which only enumerates the invalidity of standard terms.There is a logical contradiction between the relevant provisions of the Contract Law.Secondly,the provisions of the Contract Law originate from the Consumers Rights and Interests Protection Law and absorb its legislative purpose,that is,to protect consumers.If these provisions,originating from the later,are applied to all contracts,these provisions are strict with businessmen.If these provisions are only applied to consumer contracts,then that is inconsistent with the content regulation system of the Contract Law.Thus,the academic community believes that consumer contracts and other civil or commercial contracts should be distinguished,and special provisions should be adopted for standard terms in consumer contract to achieve system integrity in contract law.But the Draft Civil Code do not solve these problems,so it still needs research.In present,the justification of judicial review on the content of standard terms in Chinese law is to protect consumers.Such justification not only cannot provide value guidance for the provisions of the judicial review,but also make the contract law provides stricter provisions on consumer protection,which are harmful to business transactions.The purpose of judicial review on the content of standard terms is to regulate the abuse of contract freedom.Therefore,the justification of judicial review should be to achieve the dynamic balance of the degree of autonomy of will and the degree of equilibrium between presentations.in addition,due to standard terms are widely used and market mechanism cannot work usefully,Contract counterparties are regards as being the low degree of autonomy of will.If the standard terms will be valid,it needs the adequate degree of equilibrium between presentations.Therefore,judicial review on the content of standard terms only needs to evaluate the degree of equilibrium between presentations,and it is not necessary to evaluate the degree of agreement of the counterparties in cases.For standard terms,a low criterion should be decided,which can protect both the businessmen and consumers.Legal principles,which adopt indefinite law concept,provide legislative value guidance,and can comprehensively review the content of standard terms by value interpretation.Adopting the principle of good faith as general provisions for judgement,is good for protecting consumers by the lower criteria than adopting the principle of public order and good morals.The principle of good faith combined with the violation of dispositive rules and contractual purposes by restricting contract rights and obligations,can be the general provisions of judicial review on the content of standard terms.In consumer contract,the capacity of consumers to conclude contract is lower than that of the businessmen.So,it needs more adequate degree of equilibrium between presentations to make the validity of standard terms.But the general provisions cannot protect consumers.Therefore,judicial review on the content of standard terms in consumer contracts should stipulate specific provisions than that in contract between businessmen.In the German Civil Code,referring to the difference between businessmen and consumers.the provisions of judicial review on the content of standard terms has been distinguished.On the one hand,the principles are adopted to protect all contract counterparties.On the other hand,the provisions are becoming more and more detailed to protect consumers.In China,special prohibition provisions should be stipulated to protect consumers.Finally,when the Civil Code is being enacted,the difference between judicial review on the content of standard terms in consumer contracts and the Single Act of consumer protection should be clarified.The judicial review on the content of standard terms in consumer contracts emphasizes the special protection for consumers,and the Single Act is also to protect consumers.Although they are consistent in the purpose,there is a significant difference between the two norms.The Single Act usually stipulates the obligations of the businessmen to improve consumers capacity of concluding contract,and judicial review on the content of standard terms is to regulate the abuse of contract freedom.So,the provisions of judicial review on the content of standard terms in consumer contracts should be different from that of the Single Act.Referring to the provision on the German Civil Code,the provision of judicial review on the content of standard terms in consumer contracts can be stipulated in the general provision of the Civil Code to achieve system integrity between the Contract Law and the Single Act,but it needs to be declared that this provisions are only applied to consumer contracts.