论格式合同的优缺点(中英文)

Discuss advantage and disadvantage of Format contract

1．Introduction

1.1

So-called format contract is put forward by the parties to the contract all the contract stipulations, the other party only briefly all accept or not to accept, no bargaining leeway contract. Format contract appear, ultimately have various objective reasons. Taiwan civil law scholars think, Mr. Huang Yue Qin adhesion contracts are increasingly common, there are three main motivation: 1, the legal behavior or contracting behavior of compulsory tendency. 2, the contracting, failure behavior has become a, to repeat. 3, with a great number of production consumption for content of modern life relations, make enterprises and customers shall hope can simplify the contracting procedures.

1.2

Base on the PRC contract law , article 39“ format clauses is at that time men for repeated use and worked in advance, format contract and in when a contract not negotiated with the other party terms.” Adopt format clauses contract called for mat contract, or format contract.

2．The advantage of Format contract

2.1 Reduce the contracting cost, improve trading activities benefit, save trade time.

Format contract content formatting and specificity in the contracting procedures, simplify the adapted to modern commercial development requirements

2.2 Format contract value of safety.

Can advance differentiation risks and maintaining the safety of transactions, forecasting potential legal responsibilities risk transfer to third party. Format contract itself has the safety value, adapted to the needs of market trade, ensure the safety of the transaction.

2.3 For no particular party has fair value.

Not because of party's contract status, its ability to perform and social status of different and modify terms, it for different conditions of the people provides free trade fair chance, reflect the laws of fair value.

2.4 Format contract beneficial to the country macroscopical adjusting control.

Strengthen meddling in the economy, ensure that our national economic security. Due to adhesion clauses in advance, the state has drafted sex special government formulated uniformly is

one of a kind of way, another nation can also be used for administrative advantages strengthen audit control power, and therefore realize policy to control the economy.

3．The disadvantage of Format contract

3.1 Format contract violate the freedom of contract principle.

Format contract ruled out the possibility of choice and negotiation counterpart, in fact formed to relative person's forced contracting status, this makes the equality of concealing the fact of inequality, make the parties in a more disadvantage, also violation and shook the basic principles of the civil law.

3.2 Format contract has drafted in advance sexual and unilateral decisive

In order to pursue the interests, they almost little or no considering relative person's interests, it is often become their monopoly and compulsory consumer tools.

4．The actuality of Format contract

In our country, the format contract is widely used in all sectors of society, and meanwhile has very strong political characteristics, especially after China's accession to the world trade organization, the development of the socialist market economy prosperity and improvement to format contract for wider use, vigorously promotes the economic development and the market trade of prosperity, there are also infringement of the rights and interests of consumers problems

5．Consummated our country Format contract

Format contract with the freedom of contract as the theoretical basis, the result but became abuse freedom and rights paradigm to contract the opposite of freedom, caused the legislative, judicial and administrative wide concern, even to the common social standard contracts in today's hostility and adhesion contracts the function and its the consequences have to let us to it corresponding regulation.

We can adopt self-discipline regulation, comprehensive administrative, judicial and legislative, social supervision, and the ways in which combined the national actual, extensive reference world advanced theory, use a combination of means, complement each other with the legislation regulating basis, self-discipline and consumer protection groups, supervision as auxiliary, strengthen the legal consciousness, establish and perfect the legal system, only then can maximize the remedy the defects of standard contracts, make its for the development of China's socialist market economy and the socialist modernization services.

讨论格式合同的优缺点

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