The Standard Form Contract In Web Services

This paper discusses the standard form contract in network service, which is anew type of standard form contract in specific network service, and its differencefrom the standard form contract in meaning, nature and type. Moreover, it mainlyexplains the challenge to traditional law brought by standard form contract of newtype and the ways in resolving the issues. This paper refers to the legislative practiceof network service in many countries and regions of the world and it demonstratesmany issues in standard form contract of network service, such as basic theory,explanation and application and regulations etc. on the basis of legislative and judicialstatus in our country recently. This paper can be divided into four parts: the outline ofstandard form contract in network service, the types and analysis of standard formcontract in network service, the explanation and application of standard form contractin network service and the regulation of standard form contract in network service.The first part is about the discussion of the concept and characteristics ofstandard form contract in network service. By the contrast between standard formcontract of network service and the standard form contract of new type, we knowclearly about the characteristic of standard form contract in network service.Furthermore, this paper introduces relative stipulations of standard form contract innetwork service formulated by other countries and regions.The standard form contract in network service is a kind of standard formcontract used in network service, sketched by the network service provider and beingfaced with uncertain consumers of network service. As standard form contractdeveloped from the standard form contract of new type, it has the same characteristicsas standard form contract of traditional type: the main terms or all of the terms arepre-formulated by the involved party; having the characteristics of standardizationand formatting, having the characteristic of dependency; the general contract termsare used by the involved party in entering into many contracts with the uncertain third party. Besides, it has the characteristics that are not possessed by the standard formcontract of the traditional type:1. its dependency on Internet;2. the subject identity isdifficult to identify;3. weakened obligation of reminding.The second part is about the classification of standard form contract in networkservice. The standard form contract in network service can be divided into standardform contract of shrink-wrap type and click-wrap type. The two types of standardform contract in network service have their differences. We can further understandthe standard terms in network service by discussing their differences and their owncharacteristics.The standard form contract in network service can be divided into two types:standard form contract of shrink-wrap type and click-wrap type. The standard formcontract of shrink-wrap type is mainly used in the trading of computer software andthe standard form contract of click-wrap type is mainly used in network service.Because of the unique producing environment it has, the standard form contract ofshrink-wrap type has the characteristic that is different from other standard formcontract in network service: unpredictability. The most obvious characteristic ofstandard form contract of click-wrap type is its dependency on network.The third part discusses the interpretations and applicable conditions in the formstandard contract of network service. By discussing which kinds of interpretation, aswell as scope and condition shall the form standard contract choose first in networkservice, the purpose of protecting the involved party’s interest can be achieved.The form standard contract in network service also belongs to the form ofcontract. Thus, as to the aspects of its applicable conditions and interpretation, we canuse the ways of interpretation for general contract such as overall explanation, literalinterpretation, habitual interpretation, purposive interpretation and good-faithinterpretation etc. Besides, we shall take into account the status before and afterentering into the contract and follow the rules of historical interpretation. In theapplicable conditions and interpretation of the standard form contract in networkservice, in order to secure the balancing of involved parties’ rights and obligations, we’d give concern to the principle of priority. Besides the principle of applicableconditions and interpretation applies to general contract, we’d use specific applicableconditions and interpretation for the uniqueness of standard form contract in networkservice.We bring into network service contract the concept of standard form contractand determine its meaning by applicable conditions and explanation. Then, basing onthe theories in civil law, it has certain legal force in the two involved parties. Becausethe standard form contract has its uniqueness, in order to confirm its field ofapplication, we’d inspect it by relevant laws. Its applicable conditions includeprocedural justice and substantive justice.The fourth part discusses the issues of regulation in standard form contract innetwork service. In order to realize its regulation of standard form contract andprevent it from infringing on the involved parties’ interests by misapplication, thispart starts from three aspects: regulation by law, legislation and judicial practice;supervision by civil societies and organizations; the consumers of network service.As to the regulation by law, legislation and judicial practice, we shall realize itby the development of specific laws, safeguarding the validity of standard formcontract in network service by strengthening juridical practice and regulating thestandard form contract administratively. As to the supervision of the terms in standardform contract of network service by civil societies and organization, the businessguild organization and consumers’ association shall be responsible for it. Because theproviding of network service attaches importance to efficiency, quickness and low-cost is the obvious characteristics in attracting most of the consumers. Just because ofthis, most of the network service consumers are not possible to seek for relief in thelevel of traditional justice for the benefits that seems not very much. On the contrary,in order to meet the demands of efficiency, the consumers communicate with thenetwork service provider and even give up their rights positively. Therefore, as to law,it shall provide channels and ways to facilitate the consumers in safeguarding their interests. Moreover, the consumers themselves shall improve their own legalconsciousness and prevention awareness as well.