| The popularity of Internet technology and intelligent devices has greatly changed people’s lifestyle and thinking.The continuous development of social economy has brought daily shopping models into line with the information age.The emergence of online shopping not only triggered a new trend of shopping,but also became an indispensable part of our daily life today,keeping pace with and even surpassing traditional offline shopping methods.Currently,nearly half of China’s residents are enjoying the convenience of online shopping.Due to the huge transaction volume,in order to improve transaction efficiency and reduce transaction costs,online shopping service platforms and operators often choose the form of standard terms to enter into online shopping contracts with users or consumers.The format terms of online shopping contracts developed based on the virtual internet trading market environment have obvious advantages and disadvantages,and their impact is also widespread.Among them,the effectiveness of format terms is particularly prominent.In judicial practice,a series of shortcomings have emerged around the determination of the effectiveness of standard terms in online shopping contracts,and the emerging issue of the effectiveness of standard terms has become the key to be urgently resolved.This article is based on the effectiveness of standard terms in practice,through three parts of analysis and discussion,in order to find a solution to the effectiveness of standard terms in online shopping contracts.The first part selects three typical cases in judicial practice regarding the determination of the effectiveness of standard terms in online shopping contracts.Through a brief summary of the case,based on the focus of the dispute in the case,it analyzes the issues and shortcomings that arise in the case,mainly including:the determination of the effectiveness of standard terms in online shopping contracts There are three aspects of the regulation of standard terms of online shopping contracts with unilateral content changes and the procedures for determining the effectiveness of standard terms of online shopping contracts.The second part is a specific analysis based on the issues and shortcomings in judicial decisions regarding the validity of standard terms in online shopping contracts.First,if only the legality of the standard terms of online shopping contracts under relevant jurisdiction is reviewed and recognized as valid after meeting the legal requirements of procedural law,it will lack a reasonable basis.When facing the consumer side of the standard terms of online shopping contracts as a subject with limited or no civil capacity,if the standard terms are identified as in a state of pending effectiveness,it may lead to related losses for online operators,which is not conducive to the stability of business operators engaged in commercial trade.Secondly,there is a lack of targeted regulatory measures and unified identification standards for the effectiveness of format clauses in online shopping contracts with unilateral content changes,making it difficult to make clear and specific identification judgments when faced with the effectiveness of format clauses with unilateral content changes in practice.Thirdly,in terms of the procedures for determining the effectiveness of standard terms in online shopping contracts,due to the lack of systematic norms for determining the effectiveness of standard terms,there has been confusion in the effectiveness determination process in practice,and the incorporation review and effectiveness determination of standard terms in online shopping contracts are mixed and applicable.The third part is based on the particularity of the format terms of online shopping contracts,drawing on relevant foreign experience,and combining with the specific reality of our country,to propose solutions to the problems and shortcomings that arise.First,for standard clauses related to jurisdiction,expand the rationality review dimension and establish a dual review model of legality review and rationality review.Establish norms for determining the effectiveness of standard terms in online shopping contracts,and clarify the revocable determination of standard terms for consumers with limited or no civil capacity as the subject.Secondly,for the format terms of online shopping contracts with unilateral content changes,based on whether the performance of the contract will be affected by time factors,the format terms of online shopping contracts are divided into temporary contract format terms and continuing contract format terms,and the identification of the effectiveness of unilateral content changes is differentiated and regulated.Third,clarify the "two-step" review path,and optimize the logical order of review and effectiveness determination of online shopping contract format clauses in judicial practice.By combining the general norms of the principle of good faith with the specific enumeration norms of "gray list" and "black list" in a model from abstract to concrete,we can improve the systematic norms for determining the effectiveness of standard terms in online shopping contracts. |
PDF Full Text Request