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On the Determination of Unfair Contract
Zhang Chun lawyer
Article 5 of the Contract Law states: "The parties shall determine the rights and obligations of the parties in accordance with the principle of fairness." This is the principle of fairness.
The so-called fair principle, that is, in the contract and the implementation process, to the concept of fairness to adjust the contract between the rights and obligations of the parties. The so-called "fair concept" refers to the balance of interests as a value judging criteria to determine the interests of the parties, the pursuit of fair and reasonable goals. Fair meaning is fair and reasonable. The principle of fairness is the legal manifestation of the moral concept of progress and justice, which is a basic principle of civil law. The principle also applies to contract law. In the contract law, the principle of fairness requires the parties to the contract should be based on the concept of fairness to enter into and perform the contract, the right to exercise the contract and the performance of contractual obligations, taking into account the interests of others. "Compliance with the principle of fairness to determine the rights and obligations of the parties", refers to the parties to the contract in the contract, the implementation of the contract, the implementation of the contract interpretation process, according to the concept of fairness to determine their own contractual rights and contractual obligations.
In the two-way contract, a party in the enjoyment of the rights at the same time, but also bear the corresponding obligations, the interests of the parties to balance, the benefits to be paid to meet the price, which is the principle of fairness. If this fair is broken, it is "unfair". Obviously the contract is often the parties both the rights and obligations are very unequal, economic interests are very uneven, and thus violated the principle of fairness.
It is very difficult to apply the concept of a definite and uniform application to the unfairness of fairness because of the different provisions and the scope of application of the law of each country. Therefore, the United States "unified commercial code" although the first time in the form of statutory provisions of the unfair system, but not to the definition of fairness. (The Supreme People's Court's Opinions on the Implementation of the General Principles of the Civil Law of the People's Republic of China, Article 72): One party takes advantage of the advantages or the other's inexperienced If the rights and obligations of both parties are clearly contrary to the principle of fairness and equivalence, they can be regarded as unfairly unfair. China's contract law does not clearly stipulate the concept of unfairness, it should be considered that the Supreme Court judicial interpretation of the same applicable contract law.
Article 54 of the Contract Law of the People's Republic of China stipulates that when the contract is unfair, the party concerned shall have the right to request the people's court or the arbitration institution to change or revoke it. This provision is a concrete manifestation of the principle of fairness. The unfair contract has the following legal characteristics:
First, such contracts are clearly unfair to the parties at the time of incorporation. According to our civil law, the contract, especially the double service contract should reflect the principle of equality, equivalence and fairness, the only way to achieve contract justice. However, the unfair contract, the party has to bear more obligations and enjoy very little rights or in the economy to suffer heavy losses, while the other at a lower price to obtain greater benefits, bear very little obligations Get more right. If the imbalance of interests violates the equivalence of civil law and the principle of fairness, and violates the autonomy of the parties, it may constitute a fair and unfair contract. Of course, the unfairness of this interest has been formed at the time of the conclusion of the contract, not after the conclusion of the contract. If the contract is unfair to one party due to changes in the market after the conclusion of the contract, it may fall within the scope of the change of the situation and should not be dealt with according to the revocable contract.
Second, the benefit of one party exceeds the limits allowed by law. Such as the price of the subject is clearly much higher than the price of similar items on the market or similar services, such as compensation standards. In general, there are two situations in which the interests of the parties in the market transaction are unbalanced: one is the subjective imbalance, that is, the subject matter is that the parties are less likely to pay, in other words, Should not get; Second, the objective imbalance, that is, the outcome of the transaction on both sides of the interests are unbalanced, one party and the other party to get less. In the market economy conditions, requiring a variety of transactions in the payment and treatment are paid to achieve full equivalence is impossible, do business always lose money, engage in transactions is bound to take risks, not to mention the transaction risk is the parties voluntarily Bear the promise. If the parties are not successful or a contract at a loss, it is necessary to cancel the contract on the grounds of a loss of fairness, which is clearly contrary to the purpose set by the unfair system. The system is not intended to relieve the transaction risk that the parties should bear, but to prohibit or restrict the benefit of one party from exceeding the law.
Thirdly, the injured party is inexperienced or in urgent circumstances when entering into a contract. It can also be said that at the time of the conclusion of the contract, the victim received the necessary conditions for the lack of proper knowledge of the content of the act, or for some kind of urgency and other urgent circumstances. It can be seen that the unfair contract is not a voluntary acceptance of the loss of interest. In the sense that the unfair contract is defective and the party whose interests are compromised does not fully express its meaning, it is in this sense that the unfair contract can be said to be an unrighteous contract. Of course, this meaning that is not true and indeed the interests of the loss of the party has a certain relationship.
On the elements of unfairness should be included in the following two aspects:
One is an objective element. Obviously, the objective element of the fairness is the imbalance between the payment and the payment of the payment or the imbalance of the benefit. It can be seen that the unfairness is mainly applicable to bilateral contracts. For the free contract, because there is no price issue, so there is no imbalance between the interests of both sides and unfairly unfair. The imbalance of objective economic interests is based on the interests of certain prices, fees and other criteria to be determined as a prerequisite for those specific objects, special services, etc., because it is difficult to calculate its actual value, generally not applicable Fairness system.
Of course, the balance of interests or imbalance should be based on the specific circumstances of the various transactions to be identified, in particular, to take into account the relationship between supply and demand, price fluctuations, trading habits and other factors. However, it is fair to measure whether the interests of both parties are fair and should be determined at the time of the conclusion of the contract. If the contract is made after the conclusion of the contract, due to changes in market prices so that prices fluctuate, etc., unless there is a situation of changes in the situation, the parties can not be unfounded on the grounds that the request to cancel the contract.
Second, subjective elements. It refers to the conclusion of the contract when the party has the advantage or the use of each other rashly, no experience, etc. with the other party to set a fair contract. This use of the subjective state of others has shown that the perpetrator deviated from the requirements of the principle of good faith. Therefore, the victim can not prove that the other party has this intention and can only prove that he was in the conclusion of the contract when the lack of experience and skills, do not understand the market conditions, hasty, etc., and thus made a contract in the unfavorable, you can not think that the other side with unfair Subjective conditions. In this case, the unfavorable party shall bear the adverse consequences arising therefrom. The legal requirement is to consider subjective conditions, with the aim of protecting the fairness and impartiality of transactions, maintaining business ethics and protecting the interests of consumers in the weak. Specifically, the subjective elements are divided into the following:
First, take advantage of. The so-called use of advantage, refers to the use of economic status, and make it difficult for the other party to its obvious unfavorable contract conditions. For example, large enterprises use their advantages to establish unfair standards of contract terms, forcing consumers to accept. In addition to the format of the contract, in practice, often take advantage of its economic strength and operational advantages and put forward harsh conditions to force the other party to accept the situation. Of course, if the loss of the party can only prove that the other side of the use of supply and demand in the advantages of unreasonable price conditions, does not constitute a lack of fair and equitable subjective elements, because in the competitive conditions, supply and demand itself is constantly changing, This change is a trading risk, it is difficult to say which side took advantage of the advantage.
Second, did not fulfill the contract process should do the obligation to inform. In the contract process, both parties to the contract should inform each other of their economic strength, the performance of the subject matter, the effectiveness of the situation, these are based on the principle of good faith arising from the obligations of either party shall not conceal the contract on each other Adverse and beneficial to their own important terms. When a party makes a standard contract document and a disclaimer, it shall promptly draw the attention of the other party. Otherwise, it may also consider that the other party has no experience or recklessness.
Third, the use of each other no experience or reckless. The so-called no experience, refers to the lack of general life experience or trading experience. Does the experience include the lack of experience in the absence of general experience or experience, not including the lack of special experience. Because the parties in the purchase of a special subject matter such as cars, should be appropriate to understand the subject matter of such information. The parties should have the basic knowledge of contracting when entering into a contract, and can not think that the contract is unfairly based on the particularity of the experience. The so-called rash, refers to the sloppy or not in the contract. For example, the price of the contract is not reviewed and judged, the performance of the subject matter is not understood, hastily contracted with each other. It can be seen that the injured party in the case of recklessness is faulty.
Only in line with the above two aspects of the subjective and objective elements in order to constitute a fair display. Of course, for the use of each other no experience or reckless situation, should be strictly limited. The victim should prove that the other party has the use of behavior, and can not only prove that they are in the contract without experience or reckless. In order to prove that the other party has the use of the act, the victim can prove that the other party know that he has no experience or recklessness, and create chaotic price information and the subject matter of information or improperly exaggerate the subject matter of the market, thus affecting its correct judgment.
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