중국의 약관규제 관련 법제 연구

While, since 1986, Korea has regulated standard form contracts with “Act On The Regulation of Terms and Conditions”, China has regulated those contracts with some provisions in Contract Code. Moreover, because Chinese Contract Code has only three provisions about adhesive contracts, there are many different opinions on the interpretation of these provisions. In Chinese Contract Code, Section 39(2) of defines standard form contracts and section 39(1) regulates incorporation controls. Although there is no difference in definition of standard form contracts and a provision about the duty to indicate and explain standard terms between Korean and Chinese Act, there are some differences. The Korean Act provides a specific provision to invalidate the standard terms which does not obey the duty to indicate and explain the terms and conditions, but because China Contract Code does not have any specific provision not to obey the duty of businesses, there are some problems even though Chinese Supreme Court has decided customers may cancel the standard form contract. Section 40 of Chinese Contract Code on content control invalidates the terms and conditions about sections 52 and 53. In other words, standard form contracts about general terms of contract and general exemption clause are void under Chinese Contract Code. Some scholars have critical opinions because there are no specific provisions about the effect of standard terms in Contract Code. Chinese Contract Code is characterized by invalidating standard form contracts including general void terms in Contract and in exemption clauses are void. Moreover, because there is no specific provision about the effectiveness of unfair clauses in standard forms, there are some critical opinions. These problems are based on the lack of those provisions in Chinese Contract Code. Therefore, some scholars have argued the provisions which regulate standard terms are required in future Civil Code and others have argued ad hoc legal system such as Korea, Germany. I believe Korean Act will be the important reference to amend the provisions or to make new law regulating standard terms in China.