The Application of China’s Content Control Rules Over Standard Business Terms in Business to Business Contracts: DE - Softcover
Inhaltsangabe
China has established a uniform set of rules concerning content control of standard business terms, to which both B2B and B2C contracts are subject. How do the Chinese rules for the judicial review of the content of standard business terms, contained in the Chinese Civil Code, apply to B2B contracts? The issue of standard business terms in B2B contracts between Internet platforms and enterprises has received widespread attention in China. Chinese courts have to respond to the question of the validity of B2B contract standard business terms under private law. In this book, the goal of the author is to propose a justifiable and feasible solution for the application of uniform content control rules to B2B contracts. The author aims to analyze the judicial review paths adopted by Chinese judicial rulings on the standard business terms of B2B contracts. On this basis, the author will strike a balance between respecting business freedom and protecting the rights and interests of the contracting party facing standard business terms in the differentiated application of the uniform content control rules.
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Über die Autorin bzw. den Autor
Shuai Huang was born in Shandong Province, China. He passed the oral defense of his doctoral dissertation with the grade of "magna cum laude" in October 2022, and will get his doctoral degree in law from University of Hamburg in 2023. He was awarded a scholarship from the China's Scholarship Council to pursue his doctoral study in Germany. Shuai Huang got his master's degree in Chinese civil and commercial law from China's University of Political Science and Law. He got another master's degree in European and international law from University of Hamburg. He also participated in a research project on the Chinese Civil Code funded by the National Social Science Fund of China in 2021. Shuai Huang passed the National Judicial Examination of China in 2013.
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Text sample:Chapter 4.2 The Path of Application:"Default rules" and "the purpose of the contract" are only "reference points" in the process of content control of standard business terms. The exact description of the content control criteria should be "deviation from default rules" and "jeopardizing the purpose of the contract". The reason for "deviation from default rules" rather than "violation of default rules" is that it is usually neither possible nor necessary to ensure that a standard business term is identical in content to a default rule. The key to content control is to ensure that the content balance in standard business terms is acceptable.The balance of interests in a default rule is set by the legislation. When applying the default rule to the content control, it is only necessary to ensure that the balance of the standard business term does not "deviate" too much from this "reference point". As to how much deviation is excessive and unacceptable, it is still necessary to leave enough space for judicial value judgment based on the distinction between consumer contracts, civil contracts and business contracts. At the same time, it is only when the purpose of the contract is compromised that it is necessary to deny the validity of the standard business term. As a point of reference, the purpose of a contract is far more ambiguous than a default rule. Therefore, it is particularly important to clearly explain the scope and meaning of "jeopardizing the purpose of the contract"and, on this basis, clearly distinguish this standard of review from "deviation from default rules".4.2.1 The "Jeopardizing the Purpose of the Contact"Criterion Centered on the Major Performance Obligation:The core issue of the "jeopardizing the purpose of the contract" criterion is how to define the purpose of the contract. With reference to 307 II of the German Civil Code (BGB), the purpose of the contract in the context of the content control of standard business terms refers to the economic objectives and ideas that the parties to the terms intend to achieve through the contract, i.e. the "reasonable expectations" of the parties in the contractual relationship. In essence, in a contractual relationship, the objective observer can expect the existence of certain indispensable elements, which constitute the content of the purpose of the contract. Based on the classic classification of contractual obligations, i.e., major performance, ancillary performance, and protection obligations, the core of the "jeopardizing the purpose of the contract" criterion can be presented concretely and is thus directly applicable to the comparison with standard business terms.The most important contractual obligation is undoubtedly the major performance obligation, on the basis of which the contract is formed, and which gives rise to the contract . The "jeopardizing the purpose of the contract" criterion can be further specified as an impairment of the major performance obligation. The major performance obligation, which is the core element of expectation of the contracting party facing standard business terms. The content of the major performance can be determined based on the individually negotiated terms in the contract and on the contract terms specially used to describe the major performance obligation. It is worth noting that in the review of the content of standard business terms, the scope of the "major performance obligation" is smaller than it is usually perceived to be. The reason for this is that the content control of standard business terms cannot be conducted to the detriment of the basis of the existence of the contract. Rather, it can only be conducted within the existing context of the contract. Thus, the content control process cannot address the "minimum agreement" that exists between the parties to the contract. Therefore, the content of this "minimum agreement", which is the contract clause describing the main obligation to pay, is
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The Application of China's Content Control Rules Over Standard Business Terms in Business to Business Contracts
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