法律畢業設計論文

  格式合同的產生和發展是20世紀合同法發展的主要標誌之一，19世紀中期以來，伴隨着科技的飛速發展，社會經濟出現了迅速騰飛，特別是消費領域和公用事業更是一日千里。隨着我國社會主義市場經濟的迅速發展，特別是加入WTO後，格式合同以其自身的價值與特徵，被應用於社會經濟的各個領域，有學者甚至認為格式合同佔現代市場經濟發達國家所有數量的99％，成為當今主要的合同形式，也有學者稱“我們生活在格式合同的世界裏”。格式合同的採用，不僅有利於節約時間、經費，減少交易成本，事先分配合同風險，而且可以預估生產成本促進企業的合理化經營，對廣大消費者甚為有利。但是，我國合同法對格式條款雖有所規定，但尚欠完善。如何完善我國格式條款制度，值得我們思考。認真分析研究格式合同的價值，制定對格式合同維護地政策，進行綜合調控，維護正義，以保護處於弱勢地位的消費者，是我國法制建設面臨的艱鉅任務，也是對格式合同價值與正義維護進行探討的意義所在。本文結合我國格式合同的立法實踐，重點探討了其價值與不足，並提出了對格式合同進行正義維護的幾點建議，以便於充分發揮格式合同的最大價值，為社會創造最高的利潤，避免消費者的利益受到損害，使買賣雙方在儘可能公平的環境下交易……

關鍵詞：格式合同；
價值；
正義維護

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   錄

摘要及關鍵詞·······················································Ⅰ

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

一、格式合同相關問題研究 ··········································1

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

（二）格式合同的發展和歷史·········································1

（三）我國格式合同的現狀···········································2

1、格式合同在我國的發展現狀·········································2

2、我國針對格式合同的立法···········································3

3、我國關於格式合同無效與免責條款的規定·····························4

4、外國針對格式合同的立法···········································4

二、格式合同的價值分················································7

（一）格式合同的優點 ··············································7

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

三、格式合同的法律規制·············································11

四、格式合同中霸王條款存在原因的經濟分析及其規制····················15

（一）霸王條款的出現及其含義········································15
（二）霸王條款的破壞性分析··········································15
（三）霸王條款存在原因的經濟分析 ···································16
（四）霸王條款的規制 ··············································18
（五）我國合同法中霸王條款的規制····································19
五、完善我國格式合同法律制度的思考·································21

參考文獻···························································22致謝·······························································23附錄Ⅰ·····························································24

附錄Ⅱ·····························································36