論格式條款的立法調(diào)整
發(fā)布時(shí)間：2018-11-23 06:13
【摘要】： 作為契約法在二十世紀(jì)的新發(fā)展,格式條款的出現(xiàn)對(duì)傳統(tǒng)契約法理論產(chǎn)生了巨大沖擊。本文旨在探討契約法在近現(xiàn)代的演變,并借鑒國(guó)外立法在格式條款調(diào)整方面的成功經(jīng)驗(yàn),研討如何在格式條款立法下有效保護(hù)消費(fèi)者權(quán)益及體現(xiàn)契約自由以及契約正義。其中如何建立我國(guó)格式條款的立法體系是本篇論文的核心內(nèi)容。 本文首先對(duì)格式條款做了一般的概述,探討了格式條款的概念及特征,并將與之相關(guān)的概念,包括格式合同、標(biāo)準(zhǔn)合同、不公平交易條款及免責(zé)進(jìn)行了分析。接著本文對(duì)格式條款的理論基礎(chǔ)進(jìn)行了探討。隨著現(xiàn)代社會(huì)經(jīng)濟(jì)的發(fā)展,傳統(tǒng)的契約自由原則所固有的缺陷也日益凸顯出來(lái)。而現(xiàn)代契約法所追求的價(jià)值目標(biāo)也已經(jīng)由契約自由轉(zhuǎn)向了契約正義,在這種大前提下,對(duì)有違契約正義的格式條款進(jìn)行調(diào)整就勢(shì)在必行。 本文重點(diǎn)探討了作為大陸法系代表的德國(guó)和作為英美法系代表的英國(guó)對(duì)格式條款進(jìn)行立法調(diào)整的模式及立法內(nèi)容。德國(guó)對(duì)一般交易條款(格式條款)的立法調(diào)整始于司法判例,并在積累這些司法判例的基礎(chǔ)上,制定了對(duì)一般交易條款的專門立法,并最終將之納入到《德國(guó)民法典》的債法編中。德國(guó)政府一直站在保護(hù)消費(fèi)者的立場(chǎng),并以立法手段對(duì)嚴(yán)重?fù)p害消費(fèi)者權(quán)益的一般交易條款進(jìn)行一般性的規(guī)范。英國(guó)對(duì)格式條款的規(guī)制在成文法制定前一直是以司法控制為主,1977年英國(guó)國(guó)會(huì)制定《不公平合同條款法》,從而為法院規(guī)制不公平合同條款提供了強(qiáng)制性的成文法依據(jù)�！�1999年不公平消費(fèi)者合同條款規(guī)范》成為目前英國(guó)監(jiān)管不公平消費(fèi)者合同條款的主要行政法規(guī)。 通過(guò)對(duì)我國(guó)規(guī)范格式條款現(xiàn)狀的評(píng)價(jià)以及對(duì)德國(guó)和英國(guó)立法模式及立法內(nèi)容的借鑒,筆者對(duì)我國(guó)將來(lái)的格式條款立法模式進(jìn)行了思考。筆者認(rèn)為我國(guó)已經(jīng)初步建立起規(guī)范格式條款的立法體系,但存在著巨大的缺陷,需要進(jìn)一步改進(jìn)。在立法模式上,筆者認(rèn)為應(yīng)該專門立法,通過(guò)專門立法以統(tǒng)一格式條款領(lǐng)域中的法律規(guī)定及司法實(shí)踐中的判決依據(jù)。但在采取專門立法的同時(shí),也要對(duì)我國(guó)現(xiàn)有的相關(guān)特別法領(lǐng)域中不合理、不和諧的內(nèi)容進(jìn)行修改,以使我國(guó)的格式條款規(guī)制體系協(xié)調(diào)統(tǒng)一,從而建立一個(gè)以專門立法為核心的,以《民法通則》及《合同法》為基礎(chǔ)的,以《消費(fèi)者權(quán)益保護(hù)法》、《海商法》、《保險(xiǎn)法》、《反壟斷法》和《反不正當(dāng)競(jìng)爭(zhēng)法》等為輔助的格式條款法律規(guī)制體系。 目前,我國(guó)的專門立法缺失,司法判例制度亦未確立,因而依靠司法判例積累立法素材作用是很有限的。但鑒于我國(guó)目前“司法解釋立法化”的現(xiàn)狀,筆者建議采取從司法解釋到單獨(dú)立法的道路。通過(guò)最高人民法院的司法解釋來(lái)細(xì)致化、具體化及統(tǒng)一化格式條款的相關(guān)規(guī)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.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2009
【分類號(hào)】：D923.6
本文編號(hào)：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.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2009
【分類號(hào)】：D923.6
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前1條
1 陳興繼;論最終解釋權(quán)條款的綜合法律規(guī)制[D];重慶大學(xué);2012年
，本文編號(hào)：2350564
本文鏈接：http://sikaile.net/falvlunwen/sflw/2350564.html
最近更新
教材專著
