The Regulation Of Standard Terms In Civil Code

Nowadays,form clauses have replaced the traditional mode of contract negotiation and are increasingly becoming the basic form of contract formation in modern social life.However,the extensive application of form terms in everyday life has affected freedom of contract and contractual justice,and has easily led to an imbalance in the treatment of payments,as a result of which the counterparty to the form terms often suffers unreasonable loss of benefits.This is why jurisdictions around the world have adopted legislation to prevent unjustified loss of benefit to the counterparty,without unduly interfering with freedom of contract,in order to achieve a balance between autonomy of meaning and balance of payment.According to Larenz,the important foundations of civil law also include the principle of equilibrium of payments and the principle of fairness embodied in contracts.The theory of the regulation of form terms has been developed to date,resulting in "one definition and three rules":(1)the definition of form terms;(2)the rules for the regulation of form terms;(3)the rules for the interpretation of form terms;and(4)the rules for the control of the content of form terms.Among them,the "one definition" and the "first two rules" are formal regulations,while the last rule for evaluating the effectiveness of the content of the form clause,the content control rule,is a substantive regulation,and is also the core of the form clause regulation system.Articles 496-498 of the Civil Code provide for a system of regulation of form terms,and it is worth acknowledging that the Civil Code has made considerable progress compared to the provisions on form terms in the era of contract law,with the addition of the term "unreasonably" and the limitation of the main rights of the other party "to mitigate its However,there are still some key issues that have not been addressed.However,a number of key issues remain unresolved,including,in particular,the lack of specific benchmarks for determining the validity of content control rules.The provisions of Article 497 of the Civil Code are relatively abstract,without more specific provisions,and in judicial practice there is a lack of specific criteria for validity review.It is easy to cause different judgments in the same case and different judgments in similar cases,which affects the uniformity and certainty of judicial decisions.Therefore,there is still room to explore the content control rules of form clauses in China.This article attempts to sort out a clear line of legal application of content control of form terms in China through comparative law analysis,analysis of legal provisions,analysis of basic theories and analysis of typical provisions,and construct a model of legal application of content control of form terms in China by combining empirical analysis with relevant judicial precedents,in order to improve the rules of content control of form terms in China and enhance the uniformity of legal application.Apart from introduction and conclusion,there are five parts in this paper:The first part introduces the system and basic theories of the regulation of form terms in China’s Civil Code,including the definition of the first paragraph of Article 496,the rules of incorporation in the second paragraph of Article 496,the rules of interpretation in Article 498,and the rules of content control in Article 497.Through the introduction of the regulation system of form terms in China’s Civil Code as a whole,the object of this article is introduced:the content control system of form terms,and the essential difference between the content control system of form terms and other rules is fully elaborated,showing its central position in the regulation system and confirming the necessity of the author’s construction of a legal application model.The second part analyses the legislative history of the content control rules for form terms in China to summarize and analyse the improvements and shortcomings of the Civil Code in comparison with the provisions of the original contract law.The progress of the content control rules of China’s form terms includes:(1)the Civil Code makes a clear distinction between the rules of entry and content control;(2)the Civil Code forms the framework of the content control rules by combining the principle of fairness in Article 496(2)with the three categories of invalidity in Article 497.Moreover,the shortcomings of Article 497 of the Civil Code have been pointed out,and some problems from the era of the original contract law have not been solved,and among these problems,Content control of the form clause is too general and lack specific standards are the most serious,leading to difficulties in the application of judicial practice and the most prominent problems of different judgments in the same case and different judgments in similar cases.Therefore,the author will try to solve this problem under the framework of the existing content control rules of the Civil Code by drawing on the experience of comparative law and compiling the excellent ideas of judicial precedents.The third part mainly introduces the content control rules of each jurisdiction,introduces and analyzes them in detail,and clarifies the system and highlights of the content control rules of the legislative model of each jurisdiction.From the perspective of comparative law,we can see the progress and deficiency in the legislation of the content control system of standard clauses in China’s civil code.The fourth part mainly discusses the measures to improve the regulation of standard clauses in China’s civil code.Through the previous comparative analysis of foreign regulatory experience and the lack of regulation of standard clauses in China’s civil code.Based on the basic national conditions of our country,provide suggestions for the improvement of the civil code.In the fifth part,after completing the construction of the legal application model of content control of form clauses in the era of China’s Civil Code,the author analyzes the feasibility,reliability and reference value of the legal application model of form clauses in the era of China’s Civil Code through the empirical analysis of two typical form clauses,namely the "guaranteed price clause" in the contract of carriage of goods and the "expired forfeiture" clause in the prepaid service contract.The author analyzes the feasibility,reliability and reference value of the model of legal application of content control of form clauses in the era of civil code in China through empirical analysis of two typical judicial precedents.