电信号码转让纠纷案的法律分析
发布时间：2018-07-20 13:28
【摘要】：我国移动通信业起步于上世纪九十年代初，，随着经济的发展和科技的进步，手机从当初的奢侈品发展到如今的普通大众消费品，据中国移动、中国联通、中国电信的数据统计，截至2011年2月，我国的手机用户已达到9.99亿；随着用户数量的激增，移动通信业也成为我国经济发展的重要产业之一，仅中国移动一家公司，其2011年的营业收入就高达164亿元人民币。随着电信业的迅猛发展，与移动通信合同有关的法律纠纷也日益增多。 对于移动通信合同，从立法方面来说，《电信法》草案一改再改，但至今仍未通过，现行的法律法规对于移动通信合同的规制主要由《消费者权益保护法》、《电信管理条例》和《电信网码号资源管理办法》来完成，就后两部法规来看，前者为行政法规，后者为部门规章，法律位阶都比较低；不仅如此，就二者的内容来看，大多为调整政府与运营商之间的法律关系，对于普通用户与运营商之间的法律关系、法律适用、争议解决程序却言之寥寥。法律规定的不完善，各个法律法规之间效力参差不齐，调整范围存在交叉重叠，这一系列原因导致了移动通信合同存在法律调整上的盲区。 另一方面，从法律理论研究方面来看，由于可供借鉴的法律主要是行政法规和部门规章，因此理论成果主要集中在市场准入、行政监管等经济法领域，对于移动通信合同的性质没有统一的认识，很少从合同法角度对移动电信服务合同的有关问题进行探讨。因此，法官或者仲裁员在处理此类纠纷时，往往无所适从。 电信号码“转移”从法理的角度观察实则是电信号码使用权的转让行为，对于此类“民间行为”如何进行规制在现有的法律体系没有作出修改和完善之前，还需要我国民法学界和理论界作出更多的努力。
[Abstract]:The mobile communication industry in China started in the early 1990s. With the development of economy and science and technology, mobile phones have developed from luxury goods to ordinary consumer goods. According to statistics from China Mobile, China Unicom, and China Telecom, As of February 2011, the number of mobile phone users in China has reached 999 million. With the rapid increase in the number of subscribers, the mobile communication industry has become one of the most important industries in China's economic development. Its revenue in 2011 was as high as 16.4 billion yuan. With the rapid development of telecommunication industry, legal disputes related to mobile communication contracts are increasing day by day. With regard to mobile communications contracts, as far as legislation is concerned, the draft of the Telecommunication Law has been revised and revised, but it has not yet been adopted. The current laws and regulations on mobile communications contracts are mainly completed by the Consumer Rights and interests Protection Law, the Telecommunication Administration regulations, and the measures for the Management of Telecommunication Network Code number Resources. From the latter two laws and regulations, the former is an administrative regulation. The latter is a department regulation, and the legal rank is relatively low; not only that, but in terms of the content of the two, most of them are to adjust the legal relationship between the government and the operators, and the law is applicable to the legal relationship between the ordinary users and the operators. The dispute settlement process has little to say. Due to the imperfection of laws and regulations, the effectiveness of various laws and regulations is not uniform, and the scope of adjustment is overlapping, this series of reasons lead to the blind zone of the legal adjustment of mobile communication contracts. On the other hand, from the point of view of the study of legal theory, since the laws that can be used for reference are mainly administrative regulations and departmental regulations, the theoretical achievements are mainly concentrated in the fields of economic law, such as market access, administrative supervision, etc. There is no uniform understanding of the nature of mobile telecommunication contract, and some problems related to mobile telecommunication service contract are seldom discussed from the angle of contract law. As a result, judges or arbitrators are often at a loss when dealing with such disputes. From the point of view of legal theory, the transfer of telecommunication number is actually the transfer of the right to use telecommunication number. How to regulate this kind of "folk behavior" before the existing legal system has been modified and improved. Still need our country civil law academic circle and theory circle to make more effort.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.16;D923
本文编号：2133683
[Abstract]:The mobile communication industry in China started in the early 1990s. With the development of economy and science and technology, mobile phones have developed from luxury goods to ordinary consumer goods. According to statistics from China Mobile, China Unicom, and China Telecom, As of February 2011, the number of mobile phone users in China has reached 999 million. With the rapid increase in the number of subscribers, the mobile communication industry has become one of the most important industries in China's economic development. Its revenue in 2011 was as high as 16.4 billion yuan. With the rapid development of telecommunication industry, legal disputes related to mobile communication contracts are increasing day by day. With regard to mobile communications contracts, as far as legislation is concerned, the draft of the Telecommunication Law has been revised and revised, but it has not yet been adopted. The current laws and regulations on mobile communications contracts are mainly completed by the Consumer Rights and interests Protection Law, the Telecommunication Administration regulations, and the measures for the Management of Telecommunication Network Code number Resources. From the latter two laws and regulations, the former is an administrative regulation. The latter is a department regulation, and the legal rank is relatively low; not only that, but in terms of the content of the two, most of them are to adjust the legal relationship between the government and the operators, and the law is applicable to the legal relationship between the ordinary users and the operators. The dispute settlement process has little to say. Due to the imperfection of laws and regulations, the effectiveness of various laws and regulations is not uniform, and the scope of adjustment is overlapping, this series of reasons lead to the blind zone of the legal adjustment of mobile communication contracts. On the other hand, from the point of view of the study of legal theory, since the laws that can be used for reference are mainly administrative regulations and departmental regulations, the theoretical achievements are mainly concentrated in the fields of economic law, such as market access, administrative supervision, etc. There is no uniform understanding of the nature of mobile telecommunication contract, and some problems related to mobile telecommunication service contract are seldom discussed from the angle of contract law. As a result, judges or arbitrators are often at a loss when dealing with such disputes. From the point of view of legal theory, the transfer of telecommunication number is actually the transfer of the right to use telecommunication number. How to regulate this kind of "folk behavior" before the existing legal system has been modified and improved. Still need our country civil law academic circle and theory circle to make more effort.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.16;D923
【参考文献】
相关期刊论文 前1条
1 杨小强;非典型合同论[J];中山大学学报(社会科学版);1997年S1期
本文编号：2133683
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