Font Size: a A A

A Study On The Problems Of Application Of Law Of Click-wrap Contract

Posted on:2005-01-20Degree:MasterType:Thesis
Country:ChinaCandidate:W T ChenFull Text:PDF
GTID:2156360125956245Subject:International law
Abstract/Summary:PDF Full Text Request
The rapid development of the electronic commerce is paid universally attention by international society in recent years. Electronic contract is the most important implement employed by people to perform a transaction via Internet. Because of the extreme rapidness of Internet, most of E-contracts are standard contracts. And click-wrap contract is the most typical form of E-contract. Click-wrap contract is a standard E-contract, which leads to its compound characteristic composed by both the characteristics of E-contract and those of traditional standard contract. As a result, how to regulate click-wrap contract has become the subject of people's common concern. Centering on the conflict of laws, this dissertation discusses the application of law about click-wrap contract, and puts forward some thoughts and proposals to resolve relative problems.The dissertation consists of 4 chapters, totally amounted to 45,113 Chinese characters.Chapter 1 is a summarization of click-wrap contract, which includes the uniform Chinese translation of click-wrap contract, the definition of click-wrap contract and its basic characteristics on the basis of the analysis and the comparison of click-wrap contract with some other relative contracts, such as E-contracts, shrink-wrap contracts and traditional standard contracts.Chapter 2 analyses the challenges posed by click-wrap contract to the conflict of laws. The challenges are mainly displayed as: the challenges to the connecting factors in effect and the challenges to lex causae. As to challenges to the connecting factors, the dissertation mainly elaborates the autonomy of will doctrine and the doctrine of the closest connection, which are two principal doctrines among the application of law in the field of contract. As to the challenges to lex causae, this chapter mainly discusses the problems of the falling through of lex causae and netiquette arisen from click-wrap contract.Chapter 3 deliberates the application of law about click-wrap contract and innovations in the conflict of laws that are about to take place. On the strength of analysisof the recent statues, conventions and cases, the dissertation makes studies on the application of law about parties' contracting capacity, the contractual form, the validity of contract, the explanation of contract and contract's substance.Chapter 4 is a restatement and summarization concerned with the application of law about click-wrap contract. The conclusions are as follows: (1) parties' contracting capacity. The parties accepting the terms and items of a click-wrap contract, most of whom are natural persons, their contracting capacities will be regulated by their lex patriae, lex domicillii or the law of the place which has the closest connection; the parties offering the terms and items, most of whom are legal persons, their contracting capacities will be governed by their lex patriae or lex domicillii. (2) the contractual form. The validity of the contractual form will be governed by lex loci celebrationis, lex domicillii of ISP or the law selected by ISP, or lex causae of the contract. (3 ) the validity of click-wrap contract will be regulated by lexfori. (4) as to the explanation of click-wrap contract, lexfori, lex domisillii of the consumer or lex causae of the contract will be applicable. (5) as for the application of law of substantial factors of click-wrap contract, the dissertation holds: CD the autonomy of will doctrine will still be the fist principle ,and the limitations of it will be reduced gradually; (2) when the party's choice of the law is unavailable, click-wrap contract is governed by the law of the place which has the closest connection in principle; (3) the mandatory law on behalf of the law of consumer protection will directly apply to click-wrap contract;?the reservation of public order is still the safety valve in the application of law of click-wrap contract in each country.
Keywords/Search Tags:click-wrap contract, electronic contract, the application of law
PDF Full Text Request
Related items