|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Laws of the Shanghai Province |
[Database Search] [Name Search] [Noteup] [Help]
Regulations of Shanghai Municipality on the Supervision
|
| (Adopted at the 22nd session of the Standing Committee of the 11th
Shanghai Municipal People' s Congress on July 13, 2000) Article 1 With a view to normalizing the standard clauses in contracts, preventing standard clauses from being abused in pursuit of devious gains and protecting the legal rights and interests of consumers, these Regulations are formulated according to the provisions of the Contract Law of the People' s Republic of China, the Law of the People' s Republic of China on the Protection of Rights and Interests of Consumers, and relevant laws and regulations, and in the light of the actual circumstances of this Municipality. Article 2 A standard clause refers to a clause that the provider of standard clause (hereinafter referred to as the provider) draws up in advance for the purpose of repeated use, and does not consult the other party on it when making a contract. The contents of commercial advertisements, notices, announcements, storefront placards, vouchers, documents and others, that comply with the requirements of an offer and of the previous paragraph are regarded as standard clauses Article 3 These Regulations apply to the case that, within this municipality, any provider adopts the standard clause in making a contract with a consumer who needs to purchase and use commodities or receive services for daily consumption. Article 4 The industry and commerce administrative departments of this municipality are responsible for the supervision of standard clauses and shall, according to law, deal with any wrongful act of damaging consumers' legal rights and interests by using standard clauses. Other related responsible administrative departments shall jointly do well together in the supervision of standard clauses according to their respective duties, and timely handle any wrongful act of damaging consumers' legal rights and interests. Trade organizations shall, according to the stipulations of laws, regulations and rules, give guidance in the providing of standard clauses within their respective trade, and shall be supervised by industry and commerce administrative departments and relevant responsible administrative departments. Article 5 The provider shall determine the rights and obligations of the parties to the contract on the principle of fairness, and shall not work out stipulations unfair or unjust to consumers by misuse of his/her dominant position. Article 6 The standard clause shall not include the contents of exempting the provider from the following liabilities: 1.Liability for any resulting consumers' personal injuries; 2.Liability for consumers' property loss caused by intentional or gross negligence; 3.Warranty liability provided by law for commodities or services provided; 4. Liability for the breach of contract that provided by law; or 5.Other liabilities provided by law. Article 7 The standard clause shall not include the contents of aggravating the following liabilities of the consumers: 1.Liquidated damages or damages exceeding a reasonable amount; 2.Assuming the business-risk liability that the provider shall assume; or 3.Other contents of aggravating consumers' liabilities in violation of laws and regulations. Article 8 The standard clause shall not include the contents of excluding the following main rights of consumers: 1.Modification or cancellation of a contract according to law; 2.Claim for liquidated damages or damages; 3.Exercise of the right of interpreting a contract; 4.Right of bringing a lawsuit on disputes arising out of a contract; or 5.Other main rights that the consumers enjoy according to law. Article 9 If any standard clause contains the contents of exempting or limiting the liability of the provider himself/herself, the provider shall call the consumers' attention to it before entering into a contract by using clear and explicit spoken or written language. Notices, announcements, storefront placards and others shall be put up in conspicuous places. Article 10 When drawing up standard clauses, the provider may refer to model texts of various kinds of contracts. Contract model texts shall be formulated by relevant responsible administrative departments or trade organizations. The Shanghai Municipal Industry and Commerce Administration (hereinafter referred to as the SMICA) may take part in the formulation of contract model texts. Relevant responsible administrative departments and trade organizations that draw up their own contract model texts shall report to the SMICA for the record. Article 11 As for the following contracts that adopt standard clauses, the provider shall submit contract texts to the SMICA for the record before making a contract, with the exception of those that are regarded as standard clauses mentioned in Clause 2, Article 2 of these Regulations: 1.Contracts for purchase and lease of a house, and contracts for brokerage and entrustment thereof; 2.Contacts for residential property management and contracts for residential decoration; 3.Contracts for tourism; 4.Contracts for supply of electricity, water and gas; 5.Contracts for transportation; 6.Contracts for posts and telecommunications; or 7.Other contracts with standard clauses that the municipal people' s government deems need to be put on the file. If any contents of standard clauses that have already been put on record need any modification, the provider shall report the modified standard clause to the SMICA once more for the record. The SMICA shall institute an open inspection system for the standard clauses on the file. Article 12 When any standard clause that violates the provisions of Articles 6,7,8 is found through any of the following ways, the SMICA may propose amendments to the provider. The provider, who refuses to make any revision or disagrees about the amendments, may ask the SMICA to hold a hearing. 1.The SMICA found the violation by the examination when the standard clause is reported for the record; 2.The SMICA found the violation by the routine supervisory inspection; 3.The consumers association found the violation by the performance of its duties; or 4.The violation is found through by consumers' complaints. If the provider asks for a hearing on a standard clause that needs to be reported to the SMICA for the record according to the provisions of Article 11 of these Regulations, the SMICA shall arrange a hearing. If the provider asks for a hearing on a standard clause not under the provisions of Article 11, the SMICA may, according to actual circumstances, decide whether a hearing shall be arranged. Article 13 When a hearing on a standard clause is to be held, the SMICA shall notify the provider and other parties concerned of the hearing time and place seven days before the hearing. The provider shall attend the hearing. When holding a hearing, the SMICA may ask the municipal consumers association, relevant responsible administrative departments, trade organizations, experts and scholars, figures of the legal profession and consumers' representatives to attend the hearing. Article 14 When a revision of a standard clause is required according to laws and regulations, or based on the hearing findings, the SMICA shall notify the provider in writing. The provider shall revise the standard clause within 15 days from receiving the written notice and submit the revised standard clause to the SMICA for the record. If the provider refuses to make any revision, the SMICA may publish to society the standard clause and relevant matters of the provider. Article 15 Any consumer, who considers that a standard clause in violation of the provisions of these Regulations infringes on his or her legal rights and interests, may appeal or complain to the industry and commerce administrative departments and the consumers association, and may bring a lawsuit before the people' s court according to law. Article 16 The provider, who violates the provisions of Articles 6,7, 8 of these Regulations infringing on legal rights and interest of consumers shall bear corresponding legal liabilities. The SMICA shall order the provider who violates the provisions of Article 9, Article 11, paragraphs 1,2 of these Regulations to make correction within a time limit. Anyone who refuses to make correction within the prescribed time period may be fined of 500 to5, 000 yuan inclusive. Article 17 The provider shall not be exempted from civil liabilities for the infringement of consumers' rights and interests by the standard clause that has been put on the record and has gone through a hearing. Article 18 The party concerned who disagrees to a specific administrative act may apply for an administrative review or file an administrative lawsuit according to the stipulations of the Law of the People' s Republic of China on Administrative Review and the Administrative Litigation Law of the People' s Republic of China. If the party concerned does not apply for a review of the specific administrative act within a legal time period, nor institutes proceedings, nor performs the specific administrative act, the department that does the specific administrative act may apply to the people' s court for enforcement. Article 19 When conducting supervision over standard clauses, the industry and commerce administrative departments may ask relevant responsible administrative departments or trade organizations to assist them with supervision, guidance, and handling of the case. If the standard clauses provided by the relevant departments of the State or enterprises directly owned by the State infringe on consumers' rights and interests, the SMICA may submit to the relevant departments of the State for supervision and correction. Article 20 The contracts with standard clauses that the peasants make with the providers to purchase means of production for direct agricultural production use shall be drawn up with reference to these Regulations. Article 21 These Regulations shall become effective on January 1, 2001. If any contract with standard clauses stipulated in Article 11 paragraph 1 of these Regulations has been in use before the implementation of these Regulations, the provider shall submit the sample contract to the SMICA for the record within 90 days from the effective date of these Regulations. |
AsianLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.asianlii.org/cn/legis/sh/laws/rosmots561