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如何填补不公平条款被认定后留下的漏洞,是法学界讨论较少的理论问题。目前存在的三种标准分别是最合理条款、惩罚性条款、最小容忍条款。最小容忍条款标准符合合同自由的基本理念,其他两个标准则否。惩罚性条款标准只有基于威慑功能才有适用空间。最合理条款标准本质上具有惩罚性且不完全合乎效率。最小容忍标准则符合效率。最合理条款标准如以语境中理性人为基础,其与最小容忍条款标准完全一致。《劳动合同法》及《担保法司法解释》等法律事实上确立了最小容忍条款标准,既有的大量民间借贷利率、违约金过高调整等判例也主要体现该标准。最小容忍条款标准应成为不公平合同条款认定后漏洞弥补的一般性标准。
How to make up for the loopholes left after the unfair terms have been found is a theoretical issue that is less discussed by jurisprudence. The three existing standards are the most reasonable clause, the punitive clause and the minimum tolerance clause, respectively. The minimum tolerance clause standard conforms to the basic concept of freedom of contract, the other two standards are not. Punitive terms and conditions only have deterrent effect based on space. The most reasonable terms and conditions are punitive in nature and not entirely efficient. The minimum tolerance standard is in line with efficiency. The most reasonable terms and conditions, as in the context of rational persons, are fully consistent with the minimum tolerance clause standard. Laws such as Labor Contract Law and Security Law Interpretation have in fact established the minimum tolerance clause standard, which is mainly embodied in the existing jurisdictions such as a large amount of private lending rates and excessive liquidated damages. The minimum tolerance clause standard should be the general criterion for making up for the loophole that is found after the terms of an unfair contract.