网购合同中的免责条款研究
发布时间：2018-07-15 08:12
【摘要】：以互联网作为核心的信息技术的飞速发展,将人类引入了信息时代。网络对人类的影响己经渗透到社会生活的方方面面,而作为网络与商业相结合的产物,网络购物以其低成本和高效率等特点和优势正在全世界范围内高速发展,并越来越深刻的影响和改变着人们的生活。网络信息化带来了网上购物的兴盛,网上购物的兴起催生了网购合同的普遍运用。网购合同确定网上购物缔约双方权利义务,而免责条款则成为所有网购合同的重要内容。免责条款对于提高交易积极性、平衡缔约双方权利义务、促进社会发展等方面都发挥着巨大作用。但是,免责条款在网购合同中也时常造成隐性或者显性的不公,从而极大地挫伤了网上交易的积极性。为保护网上消费者的合法权益,让网上购物更加适应现代人们生活生产的需要,有必要对网购合同的免责条款进行全面研究,探寻网购合同免责条款法律控制的有效措施。本文就试从网购合同免责条款的概念入手,在结合各大网购平台中免责条款的订立规则的基础上,找出我国网购合同免责条款在实践中存在的问题,并对如何在符合我国当前国情的前提下从法律层面上规制网购合同免责条款提出了设想。因网购合同免责条款具有其形式和适用规则的独特性,文章将以网购合同的免责条款的效力认定方面作为切入点,从网购合同的免责条款的概述、订入与生效、解释原则与规则、法律规制四部分对其进行论述:第一部分对网购合同中的免责条款进行概述,探讨网购合同中免责条款的基本属性。虽然网购合同免责条款与一般免责条款有着相同的理论基础,但因网购合同具有其独特性,故网购合同中的免责条款具有表现形式数字化、订立环节复杂化、责任主体不确定化的特征,其特征决定了网购合同免责条款在订入规则、生效规则、解释规则具有相应的独特性。在对比几大网购平台的免责条款的基础上,发现几大网购平台的服务协议中的一些免责条款不适当的减免了合同提供方所应承担的责任,如:损害责任免除的规定、单方修改规则的规定、担保免责的规定、单方解释权的规定等,并发现司法实践中对合理提示方式的认定并不一致。第二部分对网购合同免责条款的订入条件与生效要件进行分析。免责条款并非拟定即成立,订入网购合同不仅需要免责条款形式上符合要求。网上经营者应当采用合理方式提请消费者注意免责条款的内容,如网购合同的提供方应采取“个别提示说明”方式的作出,应在网购合同的初始位置或者以单独说明的方式予以单独列出,确保这种提示能够足以引起具有一般的、正常的相对人的注意,才能说免责条款提供方尽到了其提示说明的义务,如采用以倒数方式计算失效时间的程序设置,就充分保障了协议相对人合理的审查时间,也起到提示作用;必须给予相对人合理的审查机会去知悉、理解免责条款具体内容与法律效力,如采用以倒数方式计算失效时间的程序设置,就充分保障了协议相对人合理的审查时间,也起到提示作用;必须经得相对人明示同意,如相对人通过点击网页按钮来表示已阅读并且同意。在内容上也须符合法律的相关规定,行为人内心意思与外在表现相符、免责条款合理分配当事人间风险、未造成根本性违约、不违反社会公共利益等;特定事由还将影响免责条款的效力,使得免责条款无效、效力待定或者可撤销,当事人的过错程度也将对免责条款的效力产生影响。第三部分阐述网购合同免责条款解释的原则与规则。在学术界主要存在界定说与抗辩说的两种免责条款解释原则,本文认为在网购合同免责条款的解释原则上要遵循界定说,将网购合同免责条款置于合同中做整体解释。在网购合同免责条款的解释规则上要坚持一般解释、不利解释、限制解释和非自甘风险解释的解释规则,在此基础上,因当前的网购环境当中,消费者在网购合同中几乎没有可选择权,唯一能够选择的就是“选择”或者“拒绝”,网上经营者以自身占有的优势地位制定网购合同,并拟定免责条款,网上消费者只能被动的接受,故本文认为在司法实践中网购合同免责条款的解释规则应以不利解释为原则,非格式解释优先为例外。第四部分则探讨网购合同中免责条款的法律规制。一要通过完善法律规范明确提醒义务与方式,通过制定专门立法,详细规定相关规则;出台司法解释,对网购合同免责条款的订入、效力及解释规则予以明确。二要确定事前审查制度和登记备案制度,通过完善行政事前审查制度,减少不公平条款的出现;建立健全网购合同登记备案制度,实现对网购合同的实时监督。三要发挥行业协会的制约作用,通过成立相关的网购平台协会,制定相关的协会规则;加大消费者协会的介入力度,实现对不合理免责条款的曝光和帮助消费者维权。
[Abstract]:The rapid development of information technology, with the Internet as the core, has introduced mankind to the information age. The impact of the network on human beings has penetrated into all aspects of social life. As a product of the combination of network and commerce, network shopping is developing rapidly throughout the world with its low cost and high efficiency and advantages. The more profound influence and change of people's life. Network information brings the flourishing of online shopping. The rise of online shopping has led to the widespread use of online shopping contracts. Online shopping contracts determine the rights and obligations of both parties in online shopping, and exemption clauses have become an important content of all online shopping contracts. Sex, balance the rights and obligations of the two parties, promote social development and other aspects play a huge role. However, the exemption clauses often cause recessive or explicit injustice in the online purchase contract, thus greatly bruising the enthusiasm of the online trading. It is necessary to carry out a comprehensive study on the exemption clause of the online purchase contract and explore the effective measures for the legal control of the exemption clause of the online purchase contract. This article tries to start with the concept of the exemption clause in the online purchase contract and on the basis of the conclusion of the rules of the exemption clause in the big online shopping platforms, to find out the exemption clauses in the online purchase contract in China. The problems existing in practice and how to regulate the exemption clause of online purchase contract from the legal level on the premise of meeting the current national conditions of our country are put forward. The article will take the validity of the exemption clause of the net purchase contract as the breakthrough point because the exemption clause of the net purchase contract has its own form and the applicable rules. An overview of the same exemption clauses, the entry and entry and entry into force, the interpretation principle and rules, and the four part of the legal regulation are discussed. The first part summarizes the exemption clauses in the online purchase contract and discusses the basic attributes of the exemption clause in the online purchase contract. Although the exemption clause of the net purchase contract has the same theoretical basis as the general exemption clause, it has the same theoretical basis, but because The online purchase contract has its unique characteristics, so the exemption clause in the online purchase contract has the characteristics of digitalization of expression form, the complexity of the concluding link and the indeterminate characteristics of the responsibility subject. The characteristics determine that the exemption clauses of the net purchase contract are subscribed to the rules, the rules of entry into force, the rules of interpretation have the corresponding uniqueness. The exemption clauses of several big online shopping platforms are compared. On the basis of this, it is found that some exemption clauses in the service agreements of several big online shopping platforms are unproperly relieved of the responsibilities that the contract providers should bear, such as the provisions of the exemption of liability for damage, the provisions of the unilateral revision of the rules, the provisions of the disclaimer, the provisions of the unilateral interpretation, and the identification of the way of rational prompting in judicial practice. The second part analyzes the conditions for the entry and entry of the exemption clause of the net purchase contract. The exemption clause is not set up, and the purchase contract not only needs the exemption clause in the form of the requirements. The online operators should use the reasonable means to draw the consumer's attention to the content of the exemption clause, such as the provision of the online purchase contract. It should be made in the way of "individual indication", which should be listed in the initial position of the online purchase contract or in a separate manner, to ensure that the prompt can be sufficient to attract the attention of the general and normal relative, that the exemption clause can be provided to the obligation of its instructions, such as the reciprocal party. The program setting of the calculation of the failure time fully guarantees the reasonable review time of the agreement relative to the agreement, and also plays a prompting role. It is necessary to give the relative person a reasonable examination opportunity to know and understand the specific content and legal effect of the exemption clause, for example, the protocol phase is fully guaranteed by the procedure of calculating the ineffective time by the reciprocal way. The reasonable examination time of the person also plays a prompting role; the relative person must be given the consent of the relative, such as the relative person, by clicking the button of the web page to indicate that it has been read and agreed. In content, it is also in accordance with the relevant provisions of the law. The inner meaning of the actor is in conformity with the external performance, and the exemption clause rationally distributs the risk of the people, and does not cause the root of the risk. Sexual breach of contract, do not violate the social and public interests, and so on; the specific cause will also affect the effectiveness of the exemption clause, making the exemption clause invalid, the effectiveness of undetermined or revocable, the extent of the party's fault will also have an effect on the effectiveness of the exemption clause. The third part expounds the principles and rules of the interpretation of the exemption clause of the online purchase contract. In this paper, the interpretation principle of two exemption clauses is defined. In this paper, the article holds that the interpretation principle of the exemption clause of the net purchase contract should follow the definition, and put the exemption clause of the online purchase contract into the contract as a whole. In the interpretation rule of the exemption clause of the net purchase contract, the general explanation, the unfavorable interpretation, the restriction interpretation and the non self risk should be adhered to. On this basis, on this basis, because of the current online shopping environment, consumers have little option in online shopping contracts. The only choice is "choice" or "Refusal". Online operators make online shopping contracts with their own dominant position and formulate exemption clauses. Online consumers can only be passive. Therefore, this article thinks that in the judicial practice, the rules of the exemption clause of the net purchase contract should be interpreted as the principle of disadvantageous interpretation and the non format interpretation preceded by the exception. The fourth part discusses the legal regulation of the exemption clause in the online purchase contract. Rule the rules; promulgate judicial interpretation, define the exemption clauses of the net purchase contract, the validity and the rules of interpretation. Two to determine the pre review system and registration system, to reduce the appearance of unfair terms through the improvement of the administrative review system, to establish and improve the system of registration and record of online shopping, and to realize the real-time supervision of the online purchase contract. Three to give full play to the restrictive role of the industry association, establish relevant association rules by establishing the related online shopping platform Association, increase the intervention of the Consumer Association, and realize the exposure of the unreasonable exemption clauses and help the consumers to maintain their rights.
【学位授予单位】：江西理工大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6
[Abstract]:The rapid development of information technology, with the Internet as the core, has introduced mankind to the information age. The impact of the network on human beings has penetrated into all aspects of social life. As a product of the combination of network and commerce, network shopping is developing rapidly throughout the world with its low cost and high efficiency and advantages. The more profound influence and change of people's life. Network information brings the flourishing of online shopping. The rise of online shopping has led to the widespread use of online shopping contracts. Online shopping contracts determine the rights and obligations of both parties in online shopping, and exemption clauses have become an important content of all online shopping contracts. Sex, balance the rights and obligations of the two parties, promote social development and other aspects play a huge role. However, the exemption clauses often cause recessive or explicit injustice in the online purchase contract, thus greatly bruising the enthusiasm of the online trading. It is necessary to carry out a comprehensive study on the exemption clause of the online purchase contract and explore the effective measures for the legal control of the exemption clause of the online purchase contract. This article tries to start with the concept of the exemption clause in the online purchase contract and on the basis of the conclusion of the rules of the exemption clause in the big online shopping platforms, to find out the exemption clauses in the online purchase contract in China. The problems existing in practice and how to regulate the exemption clause of online purchase contract from the legal level on the premise of meeting the current national conditions of our country are put forward. The article will take the validity of the exemption clause of the net purchase contract as the breakthrough point because the exemption clause of the net purchase contract has its own form and the applicable rules. An overview of the same exemption clauses, the entry and entry and entry into force, the interpretation principle and rules, and the four part of the legal regulation are discussed. The first part summarizes the exemption clauses in the online purchase contract and discusses the basic attributes of the exemption clause in the online purchase contract. Although the exemption clause of the net purchase contract has the same theoretical basis as the general exemption clause, it has the same theoretical basis, but because The online purchase contract has its unique characteristics, so the exemption clause in the online purchase contract has the characteristics of digitalization of expression form, the complexity of the concluding link and the indeterminate characteristics of the responsibility subject. The characteristics determine that the exemption clauses of the net purchase contract are subscribed to the rules, the rules of entry into force, the rules of interpretation have the corresponding uniqueness. The exemption clauses of several big online shopping platforms are compared. On the basis of this, it is found that some exemption clauses in the service agreements of several big online shopping platforms are unproperly relieved of the responsibilities that the contract providers should bear, such as the provisions of the exemption of liability for damage, the provisions of the unilateral revision of the rules, the provisions of the disclaimer, the provisions of the unilateral interpretation, and the identification of the way of rational prompting in judicial practice. The second part analyzes the conditions for the entry and entry of the exemption clause of the net purchase contract. The exemption clause is not set up, and the purchase contract not only needs the exemption clause in the form of the requirements. The online operators should use the reasonable means to draw the consumer's attention to the content of the exemption clause, such as the provision of the online purchase contract. It should be made in the way of "individual indication", which should be listed in the initial position of the online purchase contract or in a separate manner, to ensure that the prompt can be sufficient to attract the attention of the general and normal relative, that the exemption clause can be provided to the obligation of its instructions, such as the reciprocal party. The program setting of the calculation of the failure time fully guarantees the reasonable review time of the agreement relative to the agreement, and also plays a prompting role. It is necessary to give the relative person a reasonable examination opportunity to know and understand the specific content and legal effect of the exemption clause, for example, the protocol phase is fully guaranteed by the procedure of calculating the ineffective time by the reciprocal way. The reasonable examination time of the person also plays a prompting role; the relative person must be given the consent of the relative, such as the relative person, by clicking the button of the web page to indicate that it has been read and agreed. In content, it is also in accordance with the relevant provisions of the law. The inner meaning of the actor is in conformity with the external performance, and the exemption clause rationally distributs the risk of the people, and does not cause the root of the risk. Sexual breach of contract, do not violate the social and public interests, and so on; the specific cause will also affect the effectiveness of the exemption clause, making the exemption clause invalid, the effectiveness of undetermined or revocable, the extent of the party's fault will also have an effect on the effectiveness of the exemption clause. The third part expounds the principles and rules of the interpretation of the exemption clause of the online purchase contract. In this paper, the interpretation principle of two exemption clauses is defined. In this paper, the article holds that the interpretation principle of the exemption clause of the net purchase contract should follow the definition, and put the exemption clause of the online purchase contract into the contract as a whole. In the interpretation rule of the exemption clause of the net purchase contract, the general explanation, the unfavorable interpretation, the restriction interpretation and the non self risk should be adhered to. On this basis, on this basis, because of the current online shopping environment, consumers have little option in online shopping contracts. The only choice is "choice" or "Refusal". Online operators make online shopping contracts with their own dominant position and formulate exemption clauses. Online consumers can only be passive. Therefore, this article thinks that in the judicial practice, the rules of the exemption clause of the net purchase contract should be interpreted as the principle of disadvantageous interpretation and the non format interpretation preceded by the exception. The fourth part discusses the legal regulation of the exemption clause in the online purchase contract. Rule the rules; promulgate judicial interpretation, define the exemption clauses of the net purchase contract, the validity and the rules of interpretation. Two to determine the pre review system and registration system, to reduce the appearance of unfair terms through the improvement of the administrative review system, to establish and improve the system of registration and record of online shopping, and to realize the real-time supervision of the online purchase contract. Three to give full play to the restrictive role of the industry association, establish relevant association rules by establishing the related online shopping platform Association, increase the intervention of the Consumer Association, and realize the exposure of the unreasonable exemption clauses and help the consumers to maintain their rights.
【学位授予单位】：江西理工大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6
【参考文献】
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