Analysis Of Exemption Clause In The Electronic Contract

Along with the development of the network information and the universal use of the form contract, the electronic contract has become one important form of the modern contract types. While nearly all the electronic form contracts have the exemption clause, which makes the very big contributions in the adaptation of the social situation, the enhancement of the transaction efficiency, the reduction of the transaction risk and so on. But, this kind of the contract drawn up beforehand by a side litigant, will supplement some unfair clause frequently, which force the consumer at the weak trend position to accept"the unfair treaty". This kind of the contract seemingly meets the agreements between both sides, but in fact which has already destroyed the legal base of the freedom of contract and the party autonomy and has harmed the basic principle of the civil law and the private mental. The abuse of the exemption clause has become an important attribute to restrict our electron contract potency. In order to balance the benefit between the litigants, it is necessary to control the electronic contract clause in legal, and establish a perfect legal system of the exemption clause with the Chinese national condition. This article divides six parts to make the full introduction to the exemption clause of the electronic contract:The first part is about existence foundation of the exemption clause of the electronic contract, whose appearance is the inevitable result of the contract development, and the manifestation of"the freedom of contract". It takes the civil liability"personal"as the basis of existence, but we should forbid the abusiveness of the exemption clause in form contract.The second part carries on the analysis the written standard about the exemption clause of the electronic contract. This article believed that the electronic contract take"the click contract"and"the shrink-wrap contract"as the main manifestation. The electronic contract subscribes into is the premise which the potency produces; the click contract must be agreed by the relative person, and examined by the reasonable manner and opportunity. The shrink-wrap contract is set up by the specific pledge way, but the written standard of the shrink-wrap also follow some special rules.The third part carries on the analysis to the effective elements of the electronic contract. The exemption clause of the electronic contract into contract means that the contract set up, but the terms are not necessarily effective. Therefore, it is necessary to analysis the effective of the law, and judge the standard of the exemption clause of the electronic. The precondition of the effective electronic contract must be a starting point of being real by the litigant meaning expression, the rational distribution risk, not violating the social public interests.The fourth part is about the legal matter of the invalid electronic contract Disclaimer and uncertain effectiveness contract, the terminate contract. We may restrict the effect of the exemption clause in the legislation, to balance the interests of the both sides in the electronic contract.The fifth part discusses the principles and rules to the reasonable explanations of the exemption clause of the electronic contract. The principles unity with other formats to explain the definition of that subject, explain the rules of the establishment of uniform rules of interpretation, negative interpretation of rules and priority rules for non-standard terms.The final part of this article is about the legal controlling of the exemption clause of the electronic contract, from legislation regulations, actual judicial practices, administrative regulation and social supervision as four approaches to balance the benefit between the parties of the contract, to specification electronic transactions, to maintain its high efficiency, to maintenance of electronic contract in the important role of economic exchanges, and build a suitable legal system for the exemption clause of the electronic contract in our china.