中国《民法典》格式条款效力规则的问题及完善

Abstract

Standard terms are drawn up by one party in advance and without consultation with the other party, and the other party can only choose to accept or reject them. With the rapid development of the Internet, the use of standard terms was further expanded, which also produced some problems. On August 18,2022, China Consumer News launched a series of survey reports on unfair standard terms, which showed that 87.88% of consumers had encountered unfair standard terms. In February 2023, China Consumer News conducted a review of some unfair standard terms reviewed by the China Consumers Association, and found that some enterprises still used unfair standard terms. Therefore, it is very necessary to effectively regulate the standard terms. Article 497 of the Civil Code of China stipulates the invalid standard terms, which has undergone some changes compared with the original Contract Law. Item 2 of Article 497 of the Civil Code adds the requirement of rationality review, adds the situation of “reducing the responsibility” and “aggravating the responsibility of the other party” in the expression, and makes a more detailed classification of the invalid types of standard terms，making the article 40 of the original “Contract Law” change from “ambiguous” to “hierarchical” and changing from “rigid” to “flexible”. However, compared with the systematic and practical standard terms in foreign law, there are only a few norms in the original Contract Law and the new Civil Code, and the practicality is too weak. Under this legislative background, it is necessary to further strengthen the research on the effectiveness rules of standard terms. At present, the validity rules of standard terms are mainly composed of the Civil Code, the Law on the Protection of the Rights and Interests of Consumers, the E-commerce Law and a series of judicial interpretations in China. According to the results of legal evaluation, the effectiveness form of standard terms can be divided into four types: effectiveness to be determined, revocable, invalid and effective. In the current laws of China, there are no special provisions on the revocation of standard terms and the effectiveness of the pending circumstances, and the two cases apply to the general provisions on the effectiveness of civil juristic acts. Through practical and theoretical research, this paper shows that there are problems such as unclear connotation of validation standard, the differences in the path of effectiveness identification,the differences in the application of the validity identification benchmark, and there is no distinction between different users for fairness review of standard terms. In this regard, it can be improved by clarifying the review standards, clarifying the order of application of the formulation rules and validity rules of standard terms, clarifying the selection of the validity identification, and distinguishing users for fairness review of standard terms.