A Study on Reviewing Period of Standard Form Contract Terms
| Autor: | Yu-Chen Chiu, 邱于真 |
|---|---|
| Rok vydání: | 2017 |
| Druh dokumentu: | 學位論文 ; thesis |
| Popis: | 105 Standard form contract, which is common in modern society transaction, brings market advantage of mass contract and lower transaction cost, and effectively improves ecomomic efficiency and promotes economic development. However, because the process of making standard form contract lacks negotiation and exists severe gap of information between two parties, it will bring out an acute problem of abuses of freedom of contract to the weaker party. To achieve freedom of contract, procedural control of standard form contract is crucial and necessary. The emphasis is on the incorporation of standard form contract terms and how to ensure the weaker party has enough information to make the decision of making a contract or not. According to Article 11-1 of Consumer Protection Act, the stronger party shall provide a reasonable period for the weaker party to review all standard form contract terms, before entering into a standard form contract. Furthermore, where standard form contract terms in violation of reviewing period shall not constitute part of the contract. The core purpose of Article 11-1 is to ensure that the weaker party has the opportunity to understand terms, and Article 11-1 is part of procedural control. The theoretical basis of reviewing period is the obligation to provide information of the stronger party before entering into a standard contract. It is mostly based on problems of information asymmetry and principle of good faith. Also, the function of reviewing period is to give the weaker party time to understand information that is provided. As a matter of fact, it plays a vital role in making a contract. Since the theoretical basis of reviewing period is the obligation to provide information, not only consumer standard form contract but also non-consumer standard form contract can apply to reviewing period, because in non-consumer standard form contract, unfairness and inequity exist too. Moreover, in Civil Law, there are no procedural control of standard form contract. This implies that we should make application of reviewing period, Article 11-1 of Consumer Protection Act, by analogy to non-consumer standard form contract, but not to individually negotiated terms. On legal requirement of reviewing period, it should be provided unconditionally, disclosing all terms and other related documents and informing the right to review. What is more, it should mainly be provided to the weaker party and before entering into a standard form contract. In addition, the central competent authority may proclaim the appropriate contract reviewing period. However, there are problems like reviewing period proclaimed is not long enough, or inequity in different types of standard form contract. In violation of reviewing period, according to Article 11-1 of Consumer Protection Act, the terms shall not constitute part of the contract. However, it is not easy to claim in practice. The difficulties of the claim are mostly due to judicial opinions that confused procedural control with substantive controls. Based on the fact that reviewing period is a kind of procedural control, we should take the point of view of formal review. The emphasis is on that the weaker party have the opportunity to review, not actually reviewed or not. Thus, reviewing period system will become more effective. In addition, because that reviewing period is for the purpose of protecting the freedom of contract of the weaker party, and it is part of obligation to provide information. Then, in violation of reviewing period, the weaker party may be able to revoke the expression or claim for compensation for damages. The procedural control of standard form contract is crutial to procedural justice of contract, we should make reviewing period system more effective and efficient. Then we can essure the weaker party can make a standard form contract with the opportunity to access to information, and achieve the freedom of contract. |
| Databáze: | Networked Digital Library of Theses & Dissertations |
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