437.The Regulations of Shenzhen Special Economic Zone on Standard Terms of Contract深圳经济特区合同格式条款条例

发布时间:2016-12-20来源:市法制办字体:【 【内容纠错】

 

 

 

The Regulations of Shenzhen Special Economic Zone on Standard Terms of Contract

 

Adopted at the 15th Meeting of the Standing Committee of the 5th Shenzhen Municipal People’s Congress on April 27th, 2012

Chapter One General Provisions

Article 1  In order to strengthen the supervision and administration of standard terms of contract and prevent abusing standard terms of contract to injure consumers' legitimate rights and interests and guarantee transaction fairness, these Regulations are formulated in accordance with the basic principles of the Contract Law of the People's Republic of China, the Law of the People's Republic of China on the Protection of Consumer Rights and Interests and other laws and regulations, and in light of the actual situation of Shenzhen Special Economic Zone.

Article 2 In Shenzhen Special Economic Zone, these Regulations are applicable to the formulation, application, supervision and administration of standard terms of contract.

Article 3 The term “standard terms of contract” as used in these Regulations means the terms which are preliminarily protocolled for repeated use by operators and consumers who purchase and use commodities or accept service for living consumption, and are not negotiated with consumers when concluding the contract.

The terms that clearly stipulate concrete rights and obligations of operators and consumers in the forms of commercial advertisements, notes, notices, statements, instructions, explanations, vouchers, documents or others shall be regarded as standard terms of contract in accordance with the law.

The standard terms of contract, which have been amended after the negotiations of operators and consumers, shall not be regarded as standard terms of contract.

Article 4 Operators shall follow the principles of legality, fairness, honesty and credibility when formulating and using the standard terms of contract, and shall not abuse standard terms of contract to injure consumers' legitimate rights and interests.

Article 5 The administrative department for market supervision of the municipal government (hereinafter referred to as the Administrative Department) shall be  responsible for the supervision and management of the formulation and use of standard terms of contract, and dealing with the actions of using standard terms of contract to injure consumers' legitimate rights and interests in accordance with the law.

Other relevant departments shall be responsible for the corresponding supervision and management of the formulation and use of standard terms of contract in accordance with their respective functions and duties.

Article 6 Industrial organizations shall standardize the formulation and use of the standard terms of contract in the industry and cooperate with the Administrative Department and other relevant departments in the supervision and administration of the formulation and use of the standard terms of contract.

Article 7 The Administrative Department shall organize to establish and improve the information system for the formulation and use of standard terms of contract. Other relevant departments shall achieve the interconnection and information sharing of the administrative information system of standard terms of contract through the platform of Shenzhen for governmental information source exchange.

Chapter Two Formulation and Use

Article 8 Operators shall publicly display, in their operating or service places, the text of the contracts including standard terms for consumers' reference and copying. The commercial advertisements, notes and etc. that meet the provision of Paragraph 2 of Article 3 of these Regulations shall be set or put up in the obvious positions of the operating or service places.

Article 9 The standard terms of contract shall not contain contents exempting or relieving operators' following liabilities:

 (1) The liabilities that shall be assumed in accordance with the law for personal injury incurred to consumers;

 (2) The liabilities for property loss of consumers due to the operator's intention or gross negligence;

 (3) The guarantee liabilities that shall be assumed by the operators providing the commodities or services in accordance with the law;

 (4) The liabilities that shall be assumed in accordance with the law for breach of contract and other liabilities.

Article 10 The standard terms of contract shall not contain contents enlarging operators' following rights:

 (1) The ultimate interpretation right of the contract;

 (2) The rights to change, assign, rescind or terminate performing the contract illegally;

 (3) The rights to perform the contract within an indefinite term;

 (4) The rights to arbitrarily extend the effective term of the contract in case of contracts including a termination term;

 (5) Enlarging operators' other rights illegally.

Article 11 The standard terms of contract shall not contain contents increasing consumers' following liabilities:

 (1) Making consumers to bear the liquidated damage or the compensation for damages which significantly exceeds reasonable amount;

 (2) Making consumers to bear the risk liabilities which shall be borne by operators;

 (3) Increasing consumers’ other liabilities illegally.

Article 12 The standard terms of contract shall not contain the contents excluding or restricting consumers' following rights:

 (1) The rights to change, revoke, or rescind contracts lawfully;

 (2) The rights to suspend, or terminate the performance of contracts lawfully;

 (3) The rights to request continuous performance, take remedial measures, pay liquidated damages or the compensation for damages;

(4) The rights to institute suits, arbitration or other remedies concerning contract disputes;

(5) Other rights enjoyed by consumers in accordance with the law.

Chapter Three Supervision and Administration

Article 13 The following contracts adopting standard terms shall be submitted by operators to the Administrative Department for record within 5 working days from the day when they are used, while those regarded as the standard terms of contract in accordance with the provision of Paragraph 2 of Article 3 of these Regulations are excepted:

 (1) Contracts for supply of water, electricity or gas;

 (2) Telecommunication contracts;

 (3) Postal contracts;

(4) Cable TV contracts;

 (5) Real estate service contracts;

 (6) Travel contracts.

The Administrative Department shall review the contracts submitted for record.

Article 14 The Administrative Department shall issue a receipt to the operator when a contract submitted for record is received, and publicize the contract on the websites of the Administrative Department within 5 working days to solicit the opinions of the public. The period for publicity shall not be less than 15 working days.

Article 15 If the contract submitted for record is found to be in violation of the provisions of the laws and regulations, the Administrative Department shall deliver a letter on revision opinions to the operator within 60 days from the receipt of the contract submitted for record; if the case is complicate, the period may be extended by 30 days upon the approval of the chief of the Administrative Department.

The letter on revision opinions shall include the following contents:

 (1) The specific terms and contents of the laws and regulations violated by the standard terms of contract;

 (2) Specific revision opinions;

 (3) Informing the operators of the rights to raise objections and request a hearing.

The Administrative Department may consult relevant experts' opinions in advance on the content of the letter on revision opinions.

Article 16 If the operator holds no objection to the revision opinions issued by the Administrative Department, it shall submit the revised contract for record within 10 working days from the receipt of the letter on revision opinions.

Article 17 If the operator holds objection to the revision opinions issued by the Administrative Department, it shall present written objection within 10 working days from the receipt of the letter on revision opinions.

The written objection shall include reasons and basis for the objection. If a hearing is requested, the reasons shall be explained.

Article 18 The Administrative Department shall issue a written reply and service it to the operator within 10 working days from the receipt of the operator’s written objection. If a hearing is needed, the time for organizing the hearing shall not be included.

Article 19 If the operator requests a hearing within the written objection, the municipal Administrative Department shall organize a hearing, and issue a written reply in accordance with the results of the hearing.

Article 20 The operator shall revise the standard terms of contract in accordance with the content of the written reply, and report for record within 10 working days from the receipt of the written reply.

Article 21 Where the operator, in violation of Article 16 or Article 20 of these Regulations, fails to revise the standard terms of contract in violation of laws and regulations, the Administrative Department may take the following measures:

 (1) Appointing and interviewing the legal representative or relevant responsible persons authorized or entrusted by legal representative of the operator or relevant industrial organizations;

 (2) Inviting professionals and news media to comment on relevant standard terms of contract;

 (3) Publicizing the revision opinions of the Administrative Department and the contract that needs to be revised in special column and other forms on its website, and announcing to the public through news media for public attention.

Article 22 Where the operator revises the recorded standard terms of contract, it shall report the revised contract to the Administrative Department for record within 5 working days from the date of the use of the revised contract.

Article 23 Where the Administrative Department finds the standard terms of contract used by an operator are in violation of laws and regulations in daily supervision and administration, the Administrative Department shall issue a letter on revision opinions to the operator.

As to the letter on revision opinions as specified in the preceding paragraph, the Administrative Department and the operator shall treat it in accordance with the provisions of Article 15 to Article 21 of these Regulations.

Article 24 The Administrative Department shall establish a public reference system for standard terms of contract, publicize the recorded contracts to the society, and provide free reference for the public.

Article 25 The Administrative Department may take the following measures in accordance with the law when supervising and examining the formulation and use of standard terms of contract:

 (1) Conducting site inspection over the operators' operating or service places;

 (2) Questioning operators, relevant consumers, interested parties concerned and witnesses;

 (3) Accessing and copying relevant information;

 (4) Other measures as stipulated by laws and regulations.

Article 26 Relevant departments or industrial organizations, consumers association and other consumer organizations shall provide assist, when the Administrative Department supervises and inspects the formulation and use of standard terms of contract.

Article 27 The consumers association and other consumer organizations may collect consumers' opinions on standard terms of contract by means of symposiums, questionnaires, comments or other forms. If it is found that any standard contract term violates any provision of laws and regulations, suggestions on supervision or organization of a hearing may be submitted to the Administrative Department.

The Administrative Department shall deal with the suggestions submitted by the consumers association and other consumer organizations in accordance with the provisions of Article 15 to Article 21 of these Regulations, and inform the consumers association and other consumer organizations the handling information in writing.

Article 28 If a dispute arises between a consumer and an operator from any standard term of contract, and the consumer therefore institutes legal proceedings in a people's court, the relevant consumer association or other consumer organizations may support the consumer to do so.

Article 29 Based on judicial or arbitration practice, the judicial authority or arbitration institutions may give revision suggestions on the formulation and use of standard terms of contract to the Administrative Department.

Article 30 If it is common that the standard terms of contract violate laws and regulations in an industry, the relevant industrial organizations shall make regulation and guidance. Industrial organizations shall assist the Administrative Department in supervising the operators to implement the revision opinions raised by the Administrative Department.

Article 31 Operators are encouraged to adopt the sample contracts, or formulate the standard terms by reference to the sample contracts. The operators adopting the sample contracts are not required to report to the Administrative Department for record, unless revision is made to the sample contracts.

A sample contract shall be jointly drafted and announced by the Administrative Department or relevant departments and industrial organizations in concert with the municipal administrative department. Where consumers' rights and interests are involved, the opinions of the consumers association and other consumer organizations shall be solicited.

The Administrative Department and the relevant departments shall do a good job in the publicity and popularity of the sample contracts.

Article 32 If any standard term of contract is deemed to have infringed consumers’ rights and interests or violated any law, a complaint may be made to the Administrative Department. The Administrative Department shall, in accordance with the provisions, accept the complaint and inform the complainant in writing.

Article 33 Where an operator is punished due to the violation of the provisions of these Regulations, the Administrative Department shall record the relevant information in the operator’s credit records.

Chapter Four Legal Liability

Article 34 If an operator, in violation of the provision of Article 8 of these Regulations, fails to display the contract containing standard terms publicly in the operating or service places or fails to place or put up the commercial advertisements and notes containing standard terms at the obvious positions of operating or service places, the Administrative Department shall order a correction within a prescribed time limit; where the operator fails to make the correction within the time limit, a fine of 10,000 RMB shall be imposed.

Article 35 If an operator, in violation of the provision of Article 13 or Article 22 of these Regulations, fails to submit the contract for record that supposed to be submitted, the Administrative Department shall order a correction within a prescribed time limit; where the operator fails to make the correction within the time limit, a fine of 50,000 RMB shall be imposed.

Article 36 If an operator, in violation of the provision of Article 16 or Article 20 of these Regulations, fails to revise the standard terms of contract in accordance with the revision opinions, the Administrative Department shall order a correction within a prescribed time limit; where the operator fails to make the correction within the time limit, a fine of 50,000 RMB shall be imposed.

Article 37 If any standard term of contract, in violation of the provisions of Article 9, Article 10, Article 11 or Article 12 of these Regulations, contains the contents exempting or relieving the responsibilities of operators, enlarging operators' rights, augmenting customers' responsibilities and excluding or restraining customers' rights, legal proceedings to confirm the invalidity of such standard contract term may be instituted with a people's court by a consumer in accordance with the provisions of relevant laws and regulations.

Article 38 The standard terms of contract that have been recorded or revised in accordance with the suggestion of the Administrative Department, shall not eliminate the civil liabilities that shall be assumed by an operator in accordance with the law for causing other's injury due to the standard terms of contract.

Article 39 If the Administrative Department fails to perform its functions and duties according to the provisions, the executive directly in charge of the department and the direct responsible persons shall be punished in accordance with relevant provisions.

Where staff of the Administrative Department and other relevant departments abuse power, neglect their duties or have sought personal gains in the supervision and administration of standard terms of contract, the supervisory organs or competent organs shall give disciplinary actions in accordance with the law; where suspected crimes are involved, the case shall be referred to judicial organs for handling in accordance with the law.

Chapter Five Supplementary Provisions

Article 40 For the contracts supposed to be recorded in accordance with these Regulations that have been used before the enforcement of these Regulations, the operator shall record the contracts to the Administrative Department within 60 days after these Regulations come into effect.

Article 41 The Administrative Department may formulate implementing rules in accordance with these Regulations.

Article 42 These Regulations shall take effect as of August 1, 2012. The Regulations of Shenzhen Special Economic Zone on Standard Contracts adopted at the 24 th Meeting of the Standing Committee of the 2nd People's Congress of Shenzhen on July 2, 1998 shall be invalidated simultaneously.