The "overlord clause", to be exact, is not a legal concept, but an emotional expression, which embodies a very strong sense of color. In legal theory, the corresponding concept is "format contract", that is, a contract with terms drawn up in advance without mutual consultation and reuse. After the contract is drawn up, one party will either accept the terms to conclude the contract or not. Therefore, the standard contract is called a commitment contract or a resignation contract in Anglo-American law and a general contract in Germany. China's "Contract Law" in Article 39 is a standard clause.
The appearance of standard contract has its origin. When trading, market participants not only have to pay the price for the trading objects (goods, services and intellectual property rights, etc.). ), but also to pay a certain amount of time, energy and money for the conclusion of the transaction, which is called transaction cost in economics (excluding the transaction object, excluding transportation fees and storage fees). Market research, intelligence gathering, quality inspection, bargaining, and finally signing the contract and completing the transaction are all time-consuming and laborious, all of which mean the expenditure of transaction costs. Therefore, if both parties to a transaction have to reach a nearly perfect contract every time they complete a transaction, then the transaction cost is extremely huge. In this case, the format contract which can greatly reduce the transaction cost came into being. It can be seen that the appearance of format contracts is the result of the development of market transactions. Then, how can there be a "overlord clause" that is full of anger and resentment?
Monopoly is closely related to the emergence of "overlord clause". According to the definition of American economist Hawa Ryan, the original meaning of the word monopoly is "exclusive right", that is, one manufacturer or several manufacturers have exclusive control over a product in a given market. It can be roughly divided into administrative monopoly, industrial monopoly and economic monopoly.
Administrative monopoly is a monopoly formed by market entry barriers set by administrative agencies, and the most typical one is local protectionism. Industry monopoly can be divided into monopoly and natural monopoly. Monopoly, such as tobacco, postal services and other industries. Natural monopoly is a situation caused by economies of scale, which makes an industry most efficient only when it is produced by one enterprise. In other words, the production cost of one enterprise is less than that of two or more enterprises, and if it is repeated, it will violate the principle of efficiency. For example, "Iron Boss" is a typical natural monopoly enterprise. Its fixed assets have a long service life, so it is difficult to use them for other purposes, and the precipitation is large. This economic feature makes it uneconomical to lay rails repeatedly in the same area for competition, which can only lead to a serious waste of social resources, and the increase in costs will be passed on to consumers. The last kind of economic monopoly is a monopoly situation formed by the absolute advantage of enterprises' own strength in free competition, such as Microsoft.
It should be pointed out that monopoly itself does not necessarily lead to the "overlord clause", thus harming the interests of consumers. Only when a monopolist reaches a contract with a consumer, using his dominant position to increase the obligations of the other party and reduce his own responsibilities, is the real source of the "overlord clause".
Under the condition of market economy, consumers are one of the three main bodies participating in the operation of market economy alongside the government and enterprises, and they are the market main bodies corresponding to enterprises. Then, in the process of market operation, especially when monopoly enterprises participate in market transactions, how to protect the rights and interests of consumers as much as possible without weakening the enthusiasm of enterprises for profit?
Perfect legislation is a powerful means of protection. On the one hand, it restricts the format contract itself and conforms to the development trend of modern civil and commercial law. For example, in1976+February, Germany promulgated the Law on General Contract Terms, which stipulates that if there is any objection to the contents of general contract terms, the users of the terms shall bear the adverse interests (Article 5). Britain adopted unfair contract clauses in 1977, especially the exemption clauses in standard contracts. The Uniform Commercial Code of the United States also has restrictive clauses on standard contracts. Articles 39, 40 and 4 1 of China's Contract Law also have special provisions on standard contracts. On the other hand, it is a restriction on monopoly. From 65438 to 0890, the United States promulgated the world's first anti-monopoly law ... Sherman Act. Later, Clayton Act and Federal Trade Commission Act were successively passed, and a complete anti-monopoly legislative system was established. However, in China, the existing anti-monopoly laws and regulations are scattered, chaotic, rough and incomplete, with poor operability, and the embryonic form of monopoly such as "color TV alliance" has appeared in the market. Therefore, it is imperative to formulate a scientific and rigorous anti-monopoly law necessary for establishing a healthy and efficient market competition mechanism, combining China's national conditions and drawing lessons from the legislative experience of developed countries.
Traditional economic theory holds that monopoly is an important reason for government regulation. The purpose of government supervision is to ensure that the subjects participating in market transactions can trade equally under the principles of fairness, freedom, honesty and credit, and avoid situations that are contrary to free competition. In foreign countries, one of the means to realize government supervision is to establish efficient law enforcement agencies. There are probably three modes to follow: the establishment of quasi-judicial specialized agencies represented by the United States and Japan, such as the United States Federal Trade Commission, which has considerable authority, is directly responsible to Congress, is not under the command of the President, and exercises its power completely independently in law enforcement without interference from other agencies; The second is to set up administrative organs to enforce the law, which is the practice adopted by most European countries; The third is judicial enforcement, which provides judicial support for administrative organs. However, in China, there is no unified specialized law enforcement agency. Anti-monopoly responsibilities are scattered in industry and commerce, health, trade, quality supervision and other departments. This makes it difficult to coordinate law enforcement forces and inefficient law enforcement. The urgent task is to establish a unified anti-monopoly specialized agency to exercise law enforcement power and truly safeguard the legitimate rights and interests of consumers.
Market economy is an economy ruled by law. The essence of market economy determines that it is not allowed to have the phenomenon of "overlord clause" that violates the principle of fairness and freedom, and the existence of monopoly enterprises provides the possibility for them to use their dominant position to harm consumers. As long as the monopoly enterprise is still the main body of the market, it is difficult to avoid things that harm the interests of consumers by engaging in trading activities. In order to avoid this situation, it is more and more urgent to improve anti-monopoly legislation and establish anti-monopoly institutions. With the help of the rule of law, it is the first and only effective way to eradicate the "overlord clause" and maintain fair market transactions.