The Legal Regulation On The Right Of Unilateral Change Of The Formulator Of Standard Terms

The change of standard terms mostly exists in the network e-commerce service agreement,video website service agreement,credit card service contract,telecom service contract and other continuing contracts.Unilateral change of contract terms has become a necessary term for a variety of types of market transactions.Due to cognitive limitations,psychological deviations and other reasons,the other party to unilaterally change the terms is at a disadvantage compared with the clause maker,so it is necessary to regulate the unilateral change right of the standard clause maker by law.However,at the legal level,the Civil Code of our country has not made a systematic provision for the "unilateral change of format clause".Only "Electronic Commerce Law" gives the operator of electronic commerce platform the right to withdraw freely.Regardless of the existence of unilateral alteration clause,the right of unilateral alteration of standard clause maker has its legitimacy.If the unilateral change clause exists,it is the proof that both parties have reached the agreement of meaning,thus granting the maker the right of unilateral change.If the unilateral change clause does not exist,the maker’s unilateral change right should also be justified based on the practical needs of making the continuing contract continue to play its effect and maintaining the stability of market transactions.Due to the limited rational and psychological deviation of other party and the information prompt mode based on the network,the existing regulations can not effectively safeguard the interests of other party and avoid unfair clauses.Besides,the "transparency obligation" of European Union law and the "ransparency" system of Japanese law can provide an empirical reference for the establishment of the regulation mode in our country.Therefore,two or more prompts should be adopted to improve the appearance of the standard terms,reduce the complexity of the content and use simple and easy to understand language expression to improve the simplicity and popularity of the terms,and public power can be introduced to balance the integrity and simplicity of the content of the standard terms.The modified standard terms can be divided into core payment terms and attached terms,which should adopt different content regulation modes respectively.As for the core payment terms,direct interference with private intention should be avoided and the degree of agreement of the parties should be respected.For the attached clauses,the law should abandon the consideration of individual autonomy and adopt the content regulation oriented to improve the balance of payment.In comparison law,the common methods to regulate the contents of the changed clauses include reasonable withdrawal mechanism and "general rule+blacklist,grey list" mode.However,the homogeneity risk of standard clauses makes it difficult for the reasonable withdrawal mechanism to play an effective role,while the"general rule+blacklist,grey list" mode can better safeguard the interests of the opposite party.With regard to the introduction of "general rule+black list,grey list" mode,the principle of honesty and credit and fairness are taken as the general principles of the regulation of the content of Chinese form terms.The two complement each other and try to achieve balance in the degree of payment balance and agreement;The author tries to list the typical black list clauses and grey list clauses.The black list includes the clauses under the circumstances stipulated in Article 497 of the Civil Code,the clauses allowing the maker to unilaterally change the contract without providing valid basis,and the clauses seriously damaging the interests of the other party after the change.The grey list includes the modification of the clauses without prior agreement,and the clauses that damage the interests of the other party but have the necessity of modification.As for the concrete implementation of this model,in terms of judicial regulation,the general rules are first determined,and then the typing characteristics of black list and grey list are fixed on the special law.In the aspect of administrative regulation,the modified format provisions shall be submitted to the administrative organ for cultural processing in advance,and the administrative organ shall publish the list regularly and modify the list content when necessary.