The Duty Of Reasonable Notice Of Standard Terms In E-Commerce Practice

Benefiting from the evolving Internet technology and the growing market size of China,e-commerce is developing rapidly domestically.In this ever-changing field,in light of the particularity of China’s policy,transaction scenarios and subjects,new problems,rules,stipulations or judicial conclusions have emerged regarding the duty of a party to “call the attention of other party” when concluding a formatted contract.This paper first points out that,in principle,a party to a contract should remind the other party of all standard clauses contained therein,except for those not concerning its major interests and concerns.And then through the interpretation from a historical point of view,this paper clarifies that persons of both the civil and commercial laws shall bear such obligation under the laws of China.Thirdly,this paper lists three core problems in the demanding and performing of the obligation: too much information to understand;too few ways to perform the obligation;too different in the position of the parties to demand.By comparison and summary,this paper proposes three review standards for the above-mentioned problems: 1.based on the principle of consensual,expounding the requirements for the knowledge and performance methods of standard clauses;2.based on the principle of fairness,describing the rule of concluding extremely unfair clauses and introducing a negative list of standard terms prohibited to be incorporated in the contract;3.based on the differences in the bargaining power of the parties,through the summary of cases,sorting out the different mainstream standards applicable to contracts entered into between businesses and between a business and a consumer in China’s judicial practice.Furthermore,this paper discusses the issue of unilaterally changing standard clauses,for example,the possibility of learning from Japanese laws and the stipulations applied in the Chinese legal system from the point of legitimacy and rule composition.