浅议《合同法》格式条款制度的缺陷

The Limitation of Standard Terms System in Contract Law

我国《合同法》格式条款制度,存在以下不足:在体制方面,将格式条款的订立、效力和解释同规定在合同订立一章中,有欠科学;在订立方面,格式条款订立中条款提供方需提请对方注意的范围过于狭隘,对条款的说明义务不具有普遍性,不利于相对人利益的保护;在效力方面,存在自相矛盾、自相重复的问题。同时,仅规定条款的无效,未规定条款的可变更、撤销,有悖于合同自由原则。

There are several limitations in some provisions of standard terms of the contract law of the People's Republic of China, as follows. In terms of the structure of the contract law, it is unsuitable to put the formation, validity, as well as construction of standard terms in the Chapter Two 'Formation of Contracts'. Regarding the formation of standard terms, the scope of duty to call attention to the party supplying the standard term is too narrow. At the same time, the duty to construct standard terms isn't universal and therefore the interests of the other party can't be better protected. With respect of the validity of standard terms, there are self - contradictory and self- redundant problems. Meanwhile, contrary to the principle of entering into contract voluntarily, there is only the provision of invalidity of standard terms instead of the provision of amendment or cancellation of standard terms in Chinese contract law.