| The dispute over education and training contracts has become a social hot topic,mainly because the handling of disputes over refund clauses in such contracts has become difficult.Disputes over the contested clauses are difficult to resolve,with reasons on both sides of education and training institutions and consumers.On the one hand,the refund terms established by education and training institutions create barriers for consumers to obtain refunds,which are manifested in high refund costs,numerous refund conditions,and unreasonable refund proportions.On the other hand,consumers have cognitive limitations in their contractual decision-making due to the influence of various subjective cognitive limitations such as emotions,intelligence,and willpower.Therefore,they are prone to overlook refund clauses involving unspecified long-term risks and make decisions that put themselves in a passive position.To properly handle such disputes,it is necessary to study the regulatory methods of refund clauses as standard clauses in education and training contracts from both the legal norms and judicial rulings.Following the paradigmatic research path and using normative analysis and empirical analysis,the current regulatory status and theory of regulatory methods for refund clauses and standard clauses are analyzed and sorted from both a positive and normative perspective.By examining the legislation and judicial regulation of refund clauses through formal and content regulatory theory,the inadequacy of regulatory methods in education and training contract refund clauses is discussed with the aim of seeking a legislative and judicial regulatory path that conforms to the values of fairness and justice.At the legislative regulation level,by summarizing the main entity legal norms that regulate disputed clauses,Articles 496,497,and 498 of the Civil Code are analyzed,which exclude unfair refund clauses by incorporating rules,effectiveness evaluation rules,and interpretive rules.Through normative analysis,it is argued that there are system disorders and over-generalization in the substantive legal regulation of standard clauses in China.At the judicial regulation level,by collecting and organizing judicial rulings,the main methods used by the court to evaluate whether training institutions have fulfilled their reasonable notification obligations and whether disputed clauses are valid are summarized as formal and content regulation,respectively corresponding to the methods of formal review and substantive review.Through empirical analysis,it is argued that there are three shortcomings in judicial regulation:first,the role of formal regulation in filtering unfair refund clauses is limited;second,the court confuses principles and specific rules in content regulation;and third,the court does not follow the logical order of "form before substance" and "specific before abstract" in its judgments.At the legislative and regulatory level,based on comparative law research,it is proposed that the Civil Code can draw on the legislative model of Germany’s standard terms and conditions;and establish a blacklist and gray list system for refund clauses in education and training contracts.In terms of procedural law,the civil public interest litigation system for disputes involving standard terms and conditions in education and training contracts,including refund clauses,is not yet sound.Therefore,it is a long way to go to improve the civil public interest litigation system for disputed clauses.At the level of judicial regulation,based on empirical analysis,it is proposed that the court should improve the abstract review standards guided by the principle of good faith and credit;apply the blacklist and gray list system for refund clauses;and exercise discretion over refund clauses in education and training contracts in the order of"specific before abstract". |
