Research On Legal Issues Of Click-on Contract

This paper takes click contracts for network environment as the research object.At present,network technology is unprecedentedly developed.There are many kinds of apps on mobile communication devices,such as mobile phones.When users use these software,they often see a variety of " Service Agreement" or " Platform Privacy Policy" from the software interface,and prompt users to click to use that agreement.This " Service Agreement" or " Platform Privacy Policy" is essentially a contract.After the user clicks the consent button,an effective contract relationship is established between the service provider and the user.This kind of contract is formulated by the service provider in advance and unilaterally,without consultation with the user.Its terms are all standard terms,so this kind of contract belongs to standard contract.This kind of contract is called "click contract" because it requires user's click consent to use the service provided by the service provider.In order to discuss the validity of click-on contract's common clauses,this paper uses the methods of theoretical analysis,comparative study and case enumeration,adopts the idea of "asking questions-analyzing problems-solving problems",and makes a logical analysis of the legal issues of click-on contract,which mainly includes the following parts.The first part introduces what click contract is.Click-on contract refers to the format contract which is prepared by the service provider in advance and is applicable to the network environment.When the user clicks on the agreement,he will establish the contract relationship with the service provider.Click-on contract has different characteristics from traditional contract,mainly including:(1)click-on contract is convenient,instant and more accessible;(2)click-on contract is inductive in appearance design;(3)the process of offer and acceptance of click-on contract is weakened;(4)compared with traditional contract,click-on contract has different time points when both parties agree.? In addition,by combing the current situation of click-on contract,analyzing its rationality and difficulties,it is helpful to understand this research object more comprehensively.In the second part,the formation process of click-on contract is analyzed,and the expression of offer and acceptance is discussed in detail.Although click-on contracts are novel in form and different from traditional paper contracts,click-on contracts still belong to contracts,which can not be separated from the constraints of contract theory.Click-on contract,as a new form of contract in the network environment,still exists offer and acceptance.It can also be explained by the theory of offer and acceptance.However,there are obvious differences between click-on contract and traditional contract in terms of withdrawal and revocation of expression of intention.The third part explains the validity of click-on contract format terms.To judge the validity of the format clause in click-on contract,it is mainly based on the provisions of Article 10 of Judicial Interpretation II of Contract Law.Firstly,it is to judge whether the service provider has the obligation to prompt the unfair format clause,and to analyze whether the obligation to prompt is fulfilled in a reasonable way.The second is to determine which format clauses are unfair clauses.In this part,some common unfair clauses in click contracts are listed.Combining specific service agreements and other click contracts and court judgments,this paper demonstrates why these clauses should not be effective.In the fourth part,according to the idea of "asking questions-analyzing problems-solving problems",and on the basis of the previous article,in order to improve the current situation of click-on contract,the author puts forward some pertinent suggestions for improvement.It concludes that some format clauses should be limited to unfair clauses,even if the service provider fulfills the obligation of prompt explanation,it will not be effective.Finally,some practical suggestions are put forward:(1)to upgrade the existing departmental norms on electronic format contracts to the legal level,to enhance the binding force and compulsory force on service providers;(2)to set more stringent ways for service providers to fulfill their prompting obligations on format;(3)Punishment measures should be set up to protect users' legal rights and Interests from service providers' infringement;(4)In the setting of click-on contracts,users' needs should be taken into account,and different options can be added for users to choose by means of technology.