格式条款的价值分析及司法规制

A Value Analysis of Standard Terms Value and Judicial Regulations

垄断组织和规模交易催生的格式条款具有形式定型化、内容的单方预定、当事人地位非均衡和缔约过程的非磋商性等特点,既具有效率、效益、安全的价值优势,也存在背离契约自由和侵蚀契约正义的价值流弊。因此在利用格式条款的同时,必须对其进行司法规制:在实体法方面,从入约、效力和解释等角度进行规制;在程序法方面,通过移植域外团体诉讼和集体诉讼制度,丰富司法规制的手段。

Standard terms triggered by monopoly organizations and the large transactions are characterized by the standardized forms, terns predetermined by the single party, the unbalanced status of the party concerned and the non-negotiation during the deal is made, which has the value advantages of efficiency, benefit, and security, but also the value abuses of departure of contractual freedom and invasion of contractual justice. Therefore, eth judicial regulations must be applied when the standard terms are used. From the perspective of substantive law, standard terms must be regulated in terms of its approach method, the effect and interpretation. From the procedural lawns point of view, extraterritorial group litigation and class action system must be introduced so as to diversify the methods of judicial regulations.