法律毕业设计论文

  格式合同的产生和发展是20世纪合同法发展的主要标志之一，19世纪中期以来，伴随着科技的飞速发展，社会经济出现了迅速腾飞，特别是消费领域和公用事业更是一日千里。随着我国社会主义市场经济的迅速发展，特别是加入WTO后，格式合同以其自身的价值与特征，被应用于社会经济的各个领域，有学者甚至认为格式合同占现代市场经济发达国家所有数量的99％，成为当今主要的合同形式，也有学者称“我们生活在格式合同的世界里”。格式合同的采用，不仅有利于节约时间、经费，减少交易成本，事先分配合同风险，而且可以预估生产成本促进企业的合理化经营，对广大消费者甚为有利。但是，我国合同法对格式条款虽有所规定，但尚欠完善。如何完善我国格式条款制度，值得我们思考。认真分析研究格式合同的价值，制定对格式合同维护地政策，进行综合调控，维护正义，以保护处于弱势地位的消费者，是我国法制建设面临的艰巨任务，也是对格式合同价值与正义维护进行探讨的意义所在。本文结合我国格式合同的立法实践，重点探讨了其价值与不足，并提出了对格式合同进行正义维护的几点建议，以便于充分发挥格式合同的最大价值，为社会创造最高的利润，避免消费者的利益受到损害，使买卖双方在尽可能公平的环境下交易……

 

关键词：格式合同；价值；正义维护

 

 

 

 

 

 

 

 

 

 

 

 

ABSTRACT

 

Since the format contract production and the development have been one of 20th century contracts law development main symbols, 19th century intermediate stages, follows the technical rapid development, the social economy is appearing rapidly soared, specially expends the domain and the public utilities is the ten thousand miles in a day. Along with the our country socialist market economy development rapidly, specially joins WTO, the format contract by its own value and the characteristic, is applied to social economy each domain, has the scholar even to think the format contract accounts for modern market economy developed country all quantities 99%, now becomes the main contract form, some scholars called "we live in the format contract world". The use of format contract, not only is advantageous to saving time, the funds, reduces the transaction cost, beforehand allocate the contract risk, moreover may estimate the production cost promotion enterprise"s rationalization management, for is really advantageous to the general consumers. But, our country contract law although has the stipulation to the format provision, but still needed to consummate. How consummates our country format provision system, is worth pondering. The analysis research the value of format contract, formulates to the format contract maintenance policy, carries on the synthesis regulation, defends the justice, safeguards the consumer which is at the small and weak position, is our country legislative work arduous task role, also is carries on the discussion to the format contract value and the just safeguarding the significance to be at. This article unifies our country format contract the legislation practice, has discussed its value and the insufficiency with emphasis, and proposed carries on the just safeguarding to the format contract several recommendations, in order to the full display format contract greatest value, is the society creates the highest profit, avoids consumer"s benefit receiving the harm, causes business both sides under as far as possible the fair conditions the transaction......

Key words：format contract, value, just safeguarding

目   录

 

摘要及关键词·······················································Ⅰ

Abstract and key word···············································Ⅱ

一、格式合同相关问题研究 ··········································1

（一）格式合同的概念···············································1

（二）格式合同的发展和历史·········································1

（三）我国格式合同的现状···········································2

1、格式合同在我国的发展现状·········································2

2、我国针对格式合同的立法···········································3

3、我国关于格式合同无效与免责条款的规定·····························4

4、外国针对格式合同的立法···········································4

二、格式合同的价值分················································7

（一）格式合同的优点 ··············································7

（二）格式合同的缺点 ··············································8

三、格式合同的法律规制·············································11

四、格式合同中霸王条款存在原因的经济分析及其规制····················15

（一）霸王条款的出现及其含义········································15
（二）霸王条款的破坏性分析··········································15
（三）霸王条款存在原因的经济分析 ···································16
（四）霸王条款的规制 ··············································18
（五）我国合同法中霸王条款的规制····································19
五、完善我国格式合同法律制度的思考·································21

参考文献···························································22致谢·······························································23附录Ⅰ·····························································24

附录Ⅱ·····························································36

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