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Cases involving public works granted by the government may contain many unreasonable and obviously unfair terms. Contractors, however, in order to acquire such business, cannot refuse to enter into contract despite they know terms are unfair and unreasonable; in such a case, contractors are held up by terms maker, and only suddenly realize to intensively study the contents of contract when they are in difficulties subsequently. Accordingly, they seek the solution of the court to address contractual imbalances according to rebus sic stantibus or equity law and the principle of good faith by claiming that the terms of project contract are unfair and unreasonable, and intend to get themselves out of the predicament and constraint under such contract terms and get what they claimed by causing the court to determine such contract terms are invalid.
Pursuant to the provisions set out in Paragraph 1 of Article 247 of the Civil Law, where a contract is entered into on the predetermined terms of either party for the similar contract, and agreement on such terms is obviously unfair according to the situation, related agreement shall be invalid: (1) where the party of predetermined contract terms is exempted or relieved from its responsibilities; (2) where the other party is subject to increased responsibilities; (3) where the other party is caused to waive its rights or is restricted from exercising its rights; and (4) other circumstance that has material adverse effect on the other party. It can be known that terms in a standard contract shall be determined invalid according to law if above circumstances of obvious unfairness are violated. However, courts at different levels have different views on the determination of whether contract terms are invalid, which will cause an input of significant time and money by the parties to a litigation party. In such a case, it is necessary to conduct a statistical study on view efficiency in de jure and practice.
Most of the 622 judgment cases in relation to “standard contract” appealed to the supreme court searched in the study are irrelevant to standard contract of project. Therefore, a total of 35 judgments were further searched with Keyword of “project” in terms of cause of action. At last, 18 judgments were identified after removing duplicate data. Among such judgments, only 2 judgments have a ratio of judgment amount above 70%, accounting for 11.11% of the total judgments; 10 judgments have a ratio of judgment amount below 30%, accounting for 55.56% of the total judgments, and 6 judgments have a ratio of judgment amount ranging from 30% to 70%, accounting for 33.33%. In terms of litigation duration, there are 3 cases with a litigation process within 3 years, which are considered as successful litigation in terms of time, accounting for 16.67%; there are 15 cases with a litigation process above 3 years, which are considered as unsuccessful litigation in terms of time, accounting for 83.33%; only one case which is considered as successful litigation in terms of time with a ratio of judgment amount to the plaintiff above 70%, accounting for 5.56%. Overall, majority of such cases are considered as unsuccessful litigation.
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