Study On The Civil Jurisdiction Over Consumer Contracts Concluded Through Internet

The rapid development of the electronic commerce is paid universally attention by international society in recent years. But because of its different characteristics from other forms of commerce, how to regulate electronic commerce has become the subject of people's common concern. This dissertation discusses the problem of international civil jurisdiction, which court to decide, arising out of international electronic consumer contracts.The object of this dissertation is issue of international civil jurisdiction over consumer contracts concluded through Internet."Consumer contracts concluded through Internet"is referring to the contracts that consumers conclude with the goods or service providers, using Internet as the mediums.This kind of contracts include on-line performing contracts and off-line performing contracts. Thus this dissertation discusses B2C(business to consumer) e-commerce excluding e-commerce of other types."Jurisdiction"refers to the jurisdiction of the private international law field, namely international civil jurisdiction here. First of all, it is a kind of"international jurisdiction". Secondly, it is a kind of"judicial jurisdiction". The regulations about Internet, including rules of international civil jurisdiction, especially need to coordinate in the world. Therefore, while establishing international civil jurisdiction of Internet, we must think about other countries and international organizations. This dissertation introduces the rules of U.S. and European Union, as well as the outcome of the Hague Conference on Private International Law.In a word, the purpose of this dissertation is, through analyzing existing theories and practice, to find the suitable jurisdiction rule of consumer contracts concluded through Internet, and provide the advice for the corresponding legislation.Besides the"preface", this dissertation consists of four parts. The first part is"challenges consumer contracts concluded through Internet causing to traditional jurisdiction rules". Its contents include"the jurisdiction rules of the traditional consumer contracts","characteristics of consumer contracts concluded through Internet"and"impacts that consumer contracts concluded through Internet giving to traditional jurisdiction rules". It defines meaning of consumer contracts concluded through Internet, then summarizes four main regulations of jurisdiction: general jurisdiction, special jurisdiction, jurisdiction to protect consumer, choice of court. It proposes several particularities by comparing the consumer contracts concluded through Internet with the traditional consumer contracts. It enumerates three big problems, in order to indicate that such special consumer contracts really give challenges to traditional jurisdiction rules.The second part is"theoretic analysis of the civil jurisdiction over consumer contracts concluded through Internet". Its contents include"merit orientation of the civil jurisdiction over consumer contracts concluded through Internet"and"the approaches to decide which court has jurisdiction". While discussing the merit orientation, it not only introduces different kinds of theories about merit orientation of civil jurisdiction, but also makes some analyses based on the characteristics of Internet and needs of e-commerce. Fairness, reasonableness, convenience and certainty are all the merits that the civil jurisdiction over consumer contracts concluded through Internet should pursue. If there are conflicts among the merits, the lower should be subject to the higher, or it should be decided according to the concrete conditions. While discussing the approaches to decide which court has civil jurisdiction over consumer contracts concluded through Internet, the dissertation introduces two main approaches: the"country of origin"approach and the"country of destination"approach. Different countries or international organizations hold different opinions about which approach is better. This dissertation holds that both the two approaches are limited, and they must be used corporately.The third part is"concrete rules of the civil jurisdiction over consumer contracts concluded through Internet". Its contents include"the general rules of Internet jurisdiction","consumer home jurisdiction"and"choice of court". The dissertation summarizes development trends of general rules of Internet jurisdiction: from pursuing the jurisdiction standard protecting native interests simply, gradually to considering coordination between different countries and international organizations about the rules of Internet jurisdiction. The latter rules are more according with merit orientation of jurisdiction, further promoting e-commerce development, much more probably accepted by the international society. The dissertation proposes that"website method"that is specially used to solve Internet jurisdiction problem has not solved the problem fundamentally, after analyzing the limitation of"website method"."Consumer home jurisdiction"and"choice of court"are two important rules to solve the problem of civil jurisdiction over consumer contracts concluded through Internet. This dissertation discusses these aspects:consumer home jurisdiction in Europe Union, consumer home jurisdiction under the discussion in the Hague Conference of Private International Law, the positive role of the consumer home jurisdiction, the drawbacks of consumer home jurisdiction, how to use the consumer home jurisdiction appropriately, the prospect of consumer home jurisdiction. Finally, this part analyses the choice of court agreements in consumer contracts concluded through Internet. The conclusion is: the utility of choice of court agreements is limited, and the choice of court is only suitable for used as supplement to consumer home jurisdiction.The fourth part is"the proposal to legislation". First of all, the dissertation introduces existing legislation and practice in our country, and analyses its problems. Its content includes"current legislation","current practice by administration of justice","inclination in our country about jurisdiction and the present questions". Then the dissertation gives some advice of legislation on such respects: policy orientation, regulative mode, contents of regulation, proposed clause for legislation.The conclusion of the full text is as follows: Firstly, rules of jurisdiction over traditional consumer contracts can be improved to be useful in an Internet environment.Secondly, when solving the problem of jurisdiction over consumer contracts concluded through Internet, the consumer home jurisdiction can make main contribution, and the choice of court rule may make subsidiary contribution.Thirdly, the content of the appropriate regulation is:1. Scope of the contracts to which the rules may apply:Consumer contract is a contract concluded between a natural person acting primarily for personal, family or household, the consumer, and another party who acts for the purposes of its trade or profession, the goods or service provider.2. Conditions to apply the rules are-(1) the other party has conducted activities in the country where the consumer is (habitually) resident or directed such activities to that country; and-(2) the contract to which the claim is related arises out of these activities, including promotion or negotiation of contracts, and so on. Analysis: the only accessibility of a website in a country is not adequate, and whether the rule can apply depends on the character of the website.3. Exceptions:(1) Activity shall not be regarded as being directed to a certain country if the other party has taken reasonable steps to avoid concluding contracts with consumer (habitually) resident in that country.(2) If the consumer took the steps necessary for the conclusion of the contract in another country, and the goods or services were supplied to the consumer while he was present in that country, courts of that country has jurisdiction.Reason: that country has the most significant relationship.4. The consumer home jurisdiction- two aspects: (1) The consumer may bring an action in the courts of the country in which he is (habitually) resident, or in the courts of the country where the defendant is (habitually) resident.(2) The other party to the contract may bring proceedings against a consumer only in the courts of the country in which the consumer is (habitually) resident.5. Agreements of choice of court:(1) The agreement the consumer and the other party reach after the dispute is valid, and is exclusive.(2) If the consumer and the other party have reached an agreement before the dispute, it is valid only to the extent that it allows the consumer to bring an action in an other country. Whatever the agreement is not exclusive.