Protective Jurisdiction And Jurisdiction By Agreements In Online Consumer Contracts

Serve as the starting point of civil procedure, issue of jurisdiction plays a significant role in protecting parties' formal justice, since the general-applied conflict rule -- lex loci domains in solving transnational disputes arising from civil and commercial matters, it also has a profound effect on whether parties' substantive justice could be realized, especially in online consumer contracts. Not only because the asymmetrical status between the consumer as well as the seller in traditional consumer contracts still remains, the seller also at the risk of being accused worldwide, in which the interests of small businesses are seriously influences. On this occasion, updated research regarding ascertainment of jurisdiction on online consumer contracts should be conducted, with consideration of reevaluating the status between consumer and the seller.The first chapter of this thesis will start with theoretical analyses.Taking the fact that traditional connection factors (loci solutionis for example) are being challenged by the characteristic of Internet, newly developed theories should be analyzed in order to face challenges put forward by Internet to jurisdiction. Meanwhile, sufficient and detailed discussions should be made in relation to newly developed connection factors (website for example) and feasibility thereof. Since traditional criterion for ascertainment of jurisdiction could not fulfill requirements proposed by online consumer contracts, new perspective of researches should be conducted in order to solve problems. With an eye to the contractual nature of online consumer contracts, this thesis will be conducted from protective and agreement jurisdiction perspective.The second chapter of the thesis will be based on the conclusion of the first part. In this part, protective jurisdiction will be particularly discussed.Hereinto, "protective" will be given two potential meanings: one emphasize protection of the consumer, the other will be of the seller. After illustrations of the two meanings of "protective",the author then will reach the conclusion that Limited Consumer Home Jurisdiction is one relatively more feasible way to ascertain jurisdiction in online consumer contracts.Flexible standard should be introduced in application of Consumer Home Jurisdiction; meanwhile, solutions in relation to the risk that sellers may be accused globally should also be taken into consideration.The third chapter is the other side of the conclusion of the first part -agreement jurisdiction. Certainly, challenges of agreement jurisdiction are foreseeable. Validity of agreement (formally and substantively),determination of exclusivity, time limitation (a very important point involving validity of choice before disputes as well as the exclusion of Consumer Home Jurisdiction through agreement after disputes), applicable law of agreement, efficacy (both to chosen courts as well as courts in relation to disputes that not be chose) of agreement as well as the online standard form of contract and validity thereof.The last chapter of the thesis is based on the aforementioned research results, with consideration of status in quo of ascertainment of jurisdiction on online consumer contracts, especially by analyzing the confined application of Consumer Home Jurisdiction -- the place of receipt should be regarded as loci solutionis in online shopping disputes in 2015 Civil Procedure Act of the PRC and the Judicial Interpretation, to verify that China has been aware of the significance of legislation in online consumer contracts. On this occasion, the author then conducts further research from perspective of protective jurisdiction as well as jurisdiction by agreements on perfection of ascertainment of jurisdiction on online consumer contracts in China and make flexible advises thereof.