Research On Problems In Legal Regulations Of The Standard Terms Of Internet Service Contract

Internet environment and standard terms are naturally adaptable.Faced with a large number of network users across time and space,Internet service providers(ISP)can connect with tens of thousands of unspecified network users and establish rules of rights and obligations to regulate users' behavior and platform's fiunctions,through a pre-formulated,reusable and standard Internet service contract.However,non-negotiability may indeed be abused by ISP to recklessly violate users' interests,needs to be adjusted by law when necessary.Especially in the network contracting environment,the process of contract and the contents add heterogeneity factors on the basis of traditional standard terms with new risks,which are the focus of legal regulation.Therefore,we should control the risks brought by the information and content characteristics and their homogeneity from the two paths of information regulation and content regulation.However,It will directly attack the enthusiasm of new Internet enterprises and inhibit their development to absolutely deny the rationality of standard terms without distinction.How to specifically design the normative path of standard terms in Internet service contract is an urgent issue to be solved at present,not only make good use of them to meet the needs of autonomy and economic purposes of cyberspace,but also strictly regulate them so as to avoid negative external effects,and realize the development of emerging networke conomy in the balance of ISP and network users'interests.The necessity for regulation lies in the risks brought by the characteristics instandard terms of Internet service contract from different aspects,which could be abused by ISP.To be specific,In terms of content characteristics,thecomplexity of the legal relationship of Internet service contract and the difficulty of clarifying their responsibilities enable ISPs to take advantage of this vague legal responsibility to exempt themselves from liability.The appearance of"free" contract under the new onerous nature provides convenience for ISPs to exempt obligations to be undertaken.The ISPs could take advantage of the combination of public and private attributes to exceed the scope of private legal relationships and impose undue restrictions on users' behavior.The rapid changes in the network industry lead to the dynamic content of Internet service contract,which makes it possible for ISPs to simplify the procedure of contract alteration.In terms of information characteristics,the adequacy of information transmission of Internet contract is bound to be the limitations of network technology.The pursuit of efficiency makes ISPs try their best to seek conciseness and convenience of contracting.ISPs have opened up a risk exposure to exacerbate the degree of information asymmetry by taking advantage of technical strength,with hyperlinks pointing to the contract text,default checking consent,no special tips cautioned by text pop-up box and redundancy and complex of information.The standard terms based on the content and information characteristics above also present homogeneity.Users' right to choose other fair clauses is substantially limited or even deprived.In order to control the risks of the information characteristics above,the two-way regulation of information offer and acceptance should be carried out according to the process of agreement between the two parties.Based on the general regulation of the agreement of the meaning of Internet service format clauses,this paper uses the relevant principles of behavioral law and economics to analyze the problems caused by the cognitive limitations of Internet users,and based on this,makes a special regulation on the agreement of the meaning of Internet service format clauses.By improving the saliency of information appearance and content,setting reasonable default options,setting calm period and other mechanisms,the deviation utilization of user behavior by network service providers can be eliminated.In order to control the characteristics of content and the risks brought by homogenization,we should regulate the content of Internet service contract,that is,to evaluate the fairness of the clauses.This mechanism can only be started in the case of new market failure,which consists of new inequality negotiation ability caused by homogeneity of external market and the new form of information asymmetry caused by users' limited rationality,which make the market unable to guarantee users' substantive choice.Therefore,free market-oriented information regulation should be applied first,the authority is permitted to interfere with the content of the clauses when it fails,guaranteeing the substantive justice in the terminal.We should adopt the flexible-systematic approach to integrate autonomy and equilibrium comprehensively.However,the elements of autonomy should be presumed to be low degree to the same extent in the standard terms of Internet service contract.The content regulation should aim at improvement of the equilibrium merely,in order to enhance the interests of network users because of hard paternalism.On the consequences of evaluation,we should adopt flexible system consists of four dimensions to realize multi-interests.The standard terms with serious disequilibrium between private interests or negative externalities should be given absolutely invalid evaluation,which should be further refined into blacklist and grey list according to whether courts have discretionary space.In addition,if the clauses only cause disequilibrium of private interests,they should only be judged relative invalidity.For those standard terms with only slight disequilibrium,the higher degree of autonomy is enough to make up for the lack of equilibrium,maintaining the fundamental fairness.In terms of choosing the criteria to measure equilibrium of standard terms of Internet service contract,we should use the non-discretionary"blacklist",discretionary"grey list"and other mandatory rules first to determine whether the specific terms fall into the statutory enumeration.The path of legalization of stereotype rules should be implemented by the administration to publish the items that should be recorded and not beforehand.Meanwhile,the referral clause should be stipulated in the civil law,so that the court can use the statutory stereotype rules for judgment.Next,arbitrary norms should be applied to examine whether the standard terms seriously deviate from the essence of law,re-examines whether they violate the purpose of the contract,and finally use the principles of equitable,good faith and public order and good customs for general regulation.These criteria should also be applied to evaluate the equilibrium of typical unfair standard terms in practice when constructing statutory stereotype rules.We should also realize the balance among the values of efficiency,autonomy and substantive justice as well as internal value.Meanwhile,pay attention to the differences between business users and consumer users,as well as internal diversity,giving different protection according to their strengths and weaknesses.The forum selection clause is not only a procedural issue,but also related to the substantive rights and obligations of network users.We should conduct substantive review in standard terms of dispute settlement,not only the formal review of procedural legitimacy.By comparing the legislative and judicial experience of foreign countries and regions,it is found that the path of substantive review should be further extended to the consideration of the substantive fairness of the dispute settlement settings based on the review of procedural fairness.Pre-negotiated settlement clause and format arbitration clauses won't unbalance the interests between ISPs and users through the review of substantive fairness.As for the standard terms that the forum of dispute is stipulated in the place where the ISPs or defendant resides,if the amount of the specific object of action is as low as the standard of applying the small claims suit,and the cost of long-distance litigation is much higher than the income,it can be directly presumed that this clause will essentially prevent general consumers from exercising the right of judicial remedy and be judged invalid.Such clauses should be set as"grey list",so as to take care of the ISPs' litigation interests.In addition,we should set the Internet Court more suitable for Internet dispute settlement to ensure the realization of justice.