论格式条款的立法调整
发布时间：2018-11-23 06:13
【摘要】： 作为契约法在二十世纪的新发展,格式条款的出现对传统契约法理论产生了巨大冲击。本文旨在探讨契约法在近现代的演变,并借鉴国外立法在格式条款调整方面的成功经验,研讨如何在格式条款立法下有效保护消费者权益及体现契约自由以及契约正义。其中如何建立我国格式条款的立法体系是本篇论文的核心内容。 本文首先对格式条款做了一般的概述,探讨了格式条款的概念及特征,并将与之相关的概念,包括格式合同、标准合同、不公平交易条款及免责进行了分析。接着本文对格式条款的理论基础进行了探讨。随着现代社会经济的发展,传统的契约自由原则所固有的缺陷也日益凸显出来。而现代契约法所追求的价值目标也已经由契约自由转向了契约正义,在这种大前提下,对有违契约正义的格式条款进行调整就势在必行。 本文重点探讨了作为大陆法系代表的德国和作为英美法系代表的英国对格式条款进行立法调整的模式及立法内容。德国对一般交易条款(格式条款)的立法调整始于司法判例,并在积累这些司法判例的基础上,制定了对一般交易条款的专门立法,并最终将之纳入到《德国民法典》的债法编中。德国政府一直站在保护消费者的立场,并以立法手段对严重损害消费者权益的一般交易条款进行一般性的规范。英国对格式条款的规制在成文法制定前一直是以司法控制为主,1977年英国国会制定《不公平合同条款法》,从而为法院规制不公平合同条款提供了强制性的成文法依据。《1999年不公平消费者合同条款规范》成为目前英国监管不公平消费者合同条款的主要行政法规。 通过对我国规范格式条款现状的评价以及对德国和英国立法模式及立法内容的借鉴,笔者对我国将来的格式条款立法模式进行了思考。笔者认为我国已经初步建立起规范格式条款的立法体系,但存在着巨大的缺陷,需要进一步改进。在立法模式上,笔者认为应该专门立法,通过专门立法以统一格式条款领域中的法律规定及司法实践中的判决依据。但在采取专门立法的同时,也要对我国现有的相关特别法领域中不合理、不和谐的内容进行修改,以使我国的格式条款规制体系协调统一,从而建立一个以专门立法为核心的,以《民法通则》及《合同法》为基础的,以《消费者权益保护法》、《海商法》、《保险法》、《反垄断法》和《反不正当竞争法》等为辅助的格式条款法律规制体系。 目前,我国的专门立法缺失,司法判例制度亦未确立,因而依靠司法判例积累立法素材作用是很有限的。但鉴于我国目前“司法解释立法化”的现状,笔者建议采取从司法解释到单独立法的道路。通过最高人民法院的司法解释来细致化、具体化及统一化格式条款的相关规定。
[Abstract]:As a new development of contract law in the 20 ~ (th) century, the appearance of format clause has a great impact on the traditional contract law theory. The purpose of this paper is to discuss the evolution of contract law in modern times, and to study how to effectively protect the rights and interests of consumers and reflect the freedom of contract and contractual justice under the legislation of format clauses by drawing on the successful experience of foreign legislation in the adjustment of standard terms. How to establish the legislative system of the standard clause is the core of this paper. This paper first makes a general overview of the format clause, discusses the concept and characteristics of the format clause, and analyzes the related concepts, including format contract, standard contract, unfair trading clause and exemption. Then this paper discusses the theoretical basis of the format clause. With the development of modern society and economy, the inherent defects of the traditional principle of freedom of contract have become increasingly prominent. The value goal pursued by the modern contract law has also changed from the freedom of contract to the contractual justice. Under this premise, it is imperative to adjust the standard clauses that violate the contractual justice. This paper focuses on the mode and content of the legislative adjustment of the form clauses in Germany, as the representative of the continental law system, and in the United Kingdom, as the representative of the common law system. The legislative adjustment of general transaction clause (format clause) in Germany began with the judicial precedents, and based on the accumulation of these judicial precedents, Germany formulated special legislation on the general transaction clause. Finally, it was incorporated into the debt law of the German Civil Code. The German government has always stood in the position of consumer protection, and legislation to seriously damage consumer rights and interests of the general provisions of the general rules. Before the enactment of statutory law, the regulation of standard clauses in Britain was dominated by judicial control. In 1977, the British Parliament enacted the unfair contract clauses Act. Thus, it provides a mandatory statutory basis for the court to regulate unfair contract terms. < Specification of unfair Consumer contract terms in 1999] has become the main administrative regulation of unfair consumer contract clauses in Britain at present. Based on the evaluation of the present situation of the standard form clause in our country and the reference to the legislative model and content of Germany and Britain, the author thinks about the legislative mode of the format clause in the future in our country. The author thinks that our country has initially established the legislative system of standard form clause, but there are huge defects, which need to be further improved. In the legislative mode, the author thinks that we should make special legislation and adopt special legislation to unify the legal provisions in the field of standard clauses and the basis of judgment in judicial practice. But at the same time of adopting special legislation, it is necessary to modify the unreasonable and unharmonious contents in the relevant special law field of our country, in order to make the regulation system of the format clause of our country coordinate and unify, thus to establish a special legislation as the core. Based on the General principles of Civil Law and contract Law, and supplemented by the Consumer Rights and interests Protection Law, Maritime Law, Insurance Law, Anti-monopoly Law and Anti-unfair Competition Law, etc. At present, the special legislation of our country is lacking and the judicial precedent system has not been established, so it is very limited to rely on the judicial precedent to accumulate the legislative material. However, in view of the present situation of "legalization of judicial interpretation" in our country, the author suggests to take the road from judicial interpretation to separate legislation. Through the judicial interpretation of the Supreme people's Court to detail, concretize and unify the relevant provisions of the format.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D923.6
本文编号：2350564
[Abstract]:As a new development of contract law in the 20 ~ (th) century, the appearance of format clause has a great impact on the traditional contract law theory. The purpose of this paper is to discuss the evolution of contract law in modern times, and to study how to effectively protect the rights and interests of consumers and reflect the freedom of contract and contractual justice under the legislation of format clauses by drawing on the successful experience of foreign legislation in the adjustment of standard terms. How to establish the legislative system of the standard clause is the core of this paper. This paper first makes a general overview of the format clause, discusses the concept and characteristics of the format clause, and analyzes the related concepts, including format contract, standard contract, unfair trading clause and exemption. Then this paper discusses the theoretical basis of the format clause. With the development of modern society and economy, the inherent defects of the traditional principle of freedom of contract have become increasingly prominent. The value goal pursued by the modern contract law has also changed from the freedom of contract to the contractual justice. Under this premise, it is imperative to adjust the standard clauses that violate the contractual justice. This paper focuses on the mode and content of the legislative adjustment of the form clauses in Germany, as the representative of the continental law system, and in the United Kingdom, as the representative of the common law system. The legislative adjustment of general transaction clause (format clause) in Germany began with the judicial precedents, and based on the accumulation of these judicial precedents, Germany formulated special legislation on the general transaction clause. Finally, it was incorporated into the debt law of the German Civil Code. The German government has always stood in the position of consumer protection, and legislation to seriously damage consumer rights and interests of the general provisions of the general rules. Before the enactment of statutory law, the regulation of standard clauses in Britain was dominated by judicial control. In 1977, the British Parliament enacted the unfair contract clauses Act. Thus, it provides a mandatory statutory basis for the court to regulate unfair contract terms. < Specification of unfair Consumer contract terms in 1999] has become the main administrative regulation of unfair consumer contract clauses in Britain at present. Based on the evaluation of the present situation of the standard form clause in our country and the reference to the legislative model and content of Germany and Britain, the author thinks about the legislative mode of the format clause in the future in our country. The author thinks that our country has initially established the legislative system of standard form clause, but there are huge defects, which need to be further improved. In the legislative mode, the author thinks that we should make special legislation and adopt special legislation to unify the legal provisions in the field of standard clauses and the basis of judgment in judicial practice. But at the same time of adopting special legislation, it is necessary to modify the unreasonable and unharmonious contents in the relevant special law field of our country, in order to make the regulation system of the format clause of our country coordinate and unify, thus to establish a special legislation as the core. Based on the General principles of Civil Law and contract Law, and supplemented by the Consumer Rights and interests Protection Law, Maritime Law, Insurance Law, Anti-monopoly Law and Anti-unfair Competition Law, etc. At present, the special legislation of our country is lacking and the judicial precedent system has not been established, so it is very limited to rely on the judicial precedent to accumulate the legislative material. However, in view of the present situation of "legalization of judicial interpretation" in our country, the author suggests to take the road from judicial interpretation to separate legislation. Through the judicial interpretation of the Supreme people's Court to detail, concretize and unify the relevant provisions of the format.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D923.6
【引证文献】
相关硕士学位论文 前1条
1 陈兴继;论最终解释权条款的综合法律规制[D];重庆大学;2012年
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