Contracts serve as the foundation for the orderly operation of a market economy. However, in market transactions, illegal activities, particularly contractual violations, occur frequently. Such activities not only harm national interests and public social interests, undermining market fairness, but also squeeze the living space of law-abiding business operators, potentially leading to a "bad money drives out good" phenomenon. Maintaining market order is a fundamental duty of market regulatory authorities. To implement the provisions of the Civil Code and further advance the in-depth development of contract administrative supervision, on May 18, 2023, the State Administration for Market Regulation promulgated Decree No. 77, the "Measures for the Administration of Contract Supervision" (hereinafter referred to as the "Administrative Measures"), which officially came into effect on July 1, 2023.

I. Promulgation of the Measures for the Administration of Contract Supervision -- It is Appropriate to Pursue the "New" with Vigor

We conducted a search in the Alpha legal database using the "Measures for the Supervision and Handling of Illegal Contractual Acts" (hereinafter referred to as the "Handling Measures") as the keyword, selecting a sampling period from around 2020 to the present, up to July 21, 2023. As shown in the figure below, administrative penalty cases involving suspected contractual violations have shown a year-on-year decreasing trend. Precisely because the "Handling Measures" effectively curbed illegal contractual acts in the market, the State Administration for Market Regulation revised the "Handling Measures" (which had been in effect since 2010) and promulgated the "Measures for the Administration of Contract Supervision."

II. Impact of the Measures for the Administration of Contract Supervision -- Do Not Seek Undue Fame by Imitating "Adhesive Clauses"

In daily life, consumers are often in a disadvantaged position due to information asymmetry and frequently encounter various forms of "adhesive clauses."

What are the common adhesive clauses in daily life?

(1) "The right of interpretation belongs to [Merchant Name]."

When shopping, recharging membership cards, or traveling, we often see many merchants printing "The right of interpretation belongs to [Merchant Name]" on documents such as coupons, vouchers, or prepaid cards. Merchants use this claim of exclusive interpretation rights to evade responsibility. Does the right of interpretation truly belong to them? Illegal!

Starting July 10, 2021, a party operated beauty and hairdressing services at Room ***, B2, No. 999 Dongdaming Road, Hongkou District, Shanghai. On September 15, 2021, the party began selling a consumption card, on the back of which was printed "The right of interpretation of this card belongs to [Merchant Name]," where "[Merchant Name] Styling" was an abbreviation of the company's store name.

Because the operator's aforementioned act excluded the consumer's right to interpret the standard terms, the Market Supervision Bureau imposed a fine of RMB 2,000.

(2) Non-refundable prepaid fees?

Various merchant platforms frequently offer services upon advance payment, with bonuses or gifts added to the card balance. However, while we enjoy the convenience of such services, merchants use contracts to impose unfair terms on consumers, such as non-refundable card balances. Money spent, card obtained, but cannot get a refund? Illegal!

On August 17, 2022, law enforcement officers conducted an inspection at Shanghai *** Beauty & Hairdressing Co., Ltd., located at No. 1077 Shuidian Road, Hongkou District, Shanghai. They found that the content printed on the back of the VIP Wash, Cut & Blow Card used by the party stated: "This card, once sold, is non-refundable. The balance on the card cannot be exchanged for cash and must be used until exhausted."

It has been ascertained that, since 2022, the party concerned has been using this version of the fixed-format VIP Wash, Cut, and Blow-Dry Card. When a consumer decides to accept the VIP Wash, Cut, and Blow-Dry Card offered by the party concerned, the back of the card states: "This card, once sold, is non-refundable. The balance on the card cannot be redeemed for cash. Use until depleted."

Because the aforementioned conduct of the party concerned excludes the consumer's right to modify or rescind the contract as provided by law, the Market Supervision Administration has decided to order the party concerned to rectify the issue and impose an administrative penalty of a fine of RMB Five Hundred Yuan only.

(III) Unilateral Determination of Abnormal Users?

From January 2022 until the discovery of the violation, the party concerned, ** Foreign Wine (Shanghai) Co., Ltd., used this version of the "Screenshot of Shopping Instructions in Product Details" to sell "Macallan" alcoholic beverages. This agreement contains the clause: "In accordance with the platform's shopping rules and the prompts on the product page, for orders with identical or similar customers, IDs, payment information, shipping information, etc., as determined by the system, which are suspected of violating the purchase quantity limit, or for other abnormal orders, our company reserves the right to refuse shipment, cancel the order, or take other reasonable measures."

Because the aforementioned conduct of the party concerned excludes the consumer's right to interpret the standard terms based on the company's internal, undisclosed rules, it constitutes an illegal act of excluding the consumer's right of interpretation as stipulated by laws and regulations. A fine of RMB Ten Thousand Yuan only is imposed.

(IV) The Store Bears No Responsibility?

Shanghai ** Hotel Co., Ltd. is primarily engaged in the business activities of providing catering and accommodation services. Starting from early April 2006, at its business premises located at Xinmin Town, Hengsha, Chongming District, Shanghai, the party concerned externally used a guest registration form marked with "Notice to Guests: For any property not deposited with this hotel for safekeeping, the hotel shall not be held responsible for any accidental losses such as theft" for registering the information of its overnight guests. The content of this registration form includes wording such as "the hotel shall not be held responsible." On November 23, 2022, the aforementioned illegal conduct of the party concerned was discovered by this Bureau. From April 2006 until the discovery of the violation, the party concerned used the aforementioned registration form to provide accommodation services to a total of 139 consumers. The party concerned did not obtain any illegal income from the aforementioned standard terms.

Because the business operator, in the standard terms, exempted itself from liability for property losses of consumers caused by its intentional or grossly negligent acts, the Market Supervision Administration has decided to impose an administrative penalty of a fine of RMB Five Hundred Yuan only.

In daily life, clauses that exclude or limit consumer rights and exempt business operators from their obligations are not uncommon. The above are only partial examples; there are also other "unfair" clauses such as: "Membership benefits are non-transferable and non-assignable""As this product is a promotional item, refunds are not supported", "Customized clothing must be collected within one month; the store is not responsible for items not collected after the deadline", "The right to modify or suspend services does not require prior notification to users", etc. If consumers encounter the aforementioned "unfair" clauses, they may promptly file a complaint with the relevant market supervision department to protect their legitimate rights and interests.

III. The Vision of the Administrative Measures for Contract Supervision -- Contract Fairness Promotes Transaction Fairness

In the current environment of free contracting between business operators and consumers, some business operators, leveraging their dominant position, engage in practices that bully customers, damaging or even excluding the legitimate rights and interests of consumers to varying degrees. The enactment of the Administrative Measures for Contract Supervision aims to restrict the conduct of business operators, protect the rights and interests of consumers, and guide the parties in market transactions to adhere to the principle of fairness when entering into contracts, thereby achieving transaction fairness through contract fairness.

The orderly operation of a market economy depends on the joint efforts of all parties. Maintaining market order is a fundamental duty of market regulatory authorities, but it also requires self-improvement by business operators and active participation by consumers. Business operators should proactively amend any illegal, non-compliant, or unreasonable "adhesive clauses"; consumers should also actively engage by promptly filing complaints with the relevant market regulatory authorities regarding any unlawful or non-compliant conduct of business operators.