Research On The Validity Of The Prohibition Of Transfer Clause In The Online Shop Service Agreement

With the development of Internet technology and economy,the scale of online stores in China continues to expand,the commercial value of online stores gradually appears,and the transfer behavior of online stores gradually increases.However,in the online store service agreement signed by the operator of the online trading platform and the online store operator,the terms prohibiting the online store operator from transferring the online store without authorization are stipulated.Whether this clause is effective or not has become an important factor for the legality of online shop transfer.There are many disputes about the validity of this clause in both academic and judicial practice.Scholars and judges have two different views,one is that it is valid,the other is that it is invalid.On the one hand,there are some defects in the basis of legal recognition.On the other hand,neither the contract law nor the e-commerce law can make a clear response to this dispute.On the other hand,it is due to the single perspective in the process of identification,the lack of the concept of interest balance,and the disregard of the role of e-commerce law.In order to solve the problems in the determination of the effect of the prohibition of transfer,we should have both macro perspective and micro specific measures.In the macro aspect,first of all,we should establish the position of effectiveness determination,respect the development law of online store transfer market,and respect the essence of market economy development.Secondly,we need to open a single perspective,on the one hand,we need to balance the interests as a guiding principle,on the other hand,we need to pay attention to the role of e-commerce law.In the micro aspect,it is necessary to provide a unified standard for the determination of the validity of the terms prohibiting the transfer of online stores.In legislation,it is necessary to clarify the legal nature of online stores so that judges can apply clear legal rules.When the creditor's right system and property right system can not cover such virtual properties as online stores,these virtual properties can be classified as an independent civil right and belong to online store operators.At the same time,the main rights in Article 40 of the contract law and the unreasonable restrictions in the e-commerce law should be clearly interpreted in legislation.In the case of fuzzy legal basis and sound online store transfer system,in order to resolve the embarrassment of different judgments in the same case in the current judicial trial,the court can play a role in guiding the case.When determining the effect of the terms,the court can make different effects on the terms of banning online store transfer according to the different results brought by online store transfer.